Before the Washington, D.C. 20554 in the Matter Of: ) ) Gray Television

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554

In the Matter of: ) ) Gray Television Licensee, LLC ) ) MB Docket No. 16-293 For Modification of the Television Market ) For WSAW-TV, Wausau, Wisconsin ) CSR-8926-A Facility Identification Number 6867 ) )

TO: Marlene H. Dortch, Secretary

For transmission to the Chief, Policy Division, Media Bureau

OPPOSITION TO PETITION FOR SPECIAL RELIEF

WDIO-TV, LLC KQDS ACQUISITION CORP.

FLETCHER, HEALD & HILDRETH, PLC 1300 North 17th Street, 11th Floor Arlington, VA 22209 (703) 812-0400

October 20, 2016

TABLE OF CONTENTS

TABLE OF CONTENTS ...... i

SUMMARY ...... ii

I. BACKGROUND ...... 3

A. County-Wide Satellite Market Modification Under STELAR ...... 3

B. Ashland and Iron Counties and the Duluth-Superior DMA...... 5

II. GRAY’S SHOWING ON THE MARKET MODIFICATION CRITERIA DOES NOT JUSTIFY GRANT OF THE PETITION ...... 7

A. Gray’s Claims of Historical Carriage Cannot Support Grant of the Petition ...... 7

B. Gray’s Claims of Local Service to the Counties Must Be Discounted ...... 9

C. Ashland and Iron Counties are Well-Served with Local Programming from WDIO and KQDS-TV...... 12

D. Access to In-State Stations...... 14

E. WSAW-TV’s Ratings Do Not Support Adding the Entirety of Ashland and Iron Counties to the Station’s Local Market ...... 15

III. GRANT OF THE PETITION WILL HARM LOCAL PROGRAM SERVICE TO THE COUNTIES ...... 17

IV. CONCLUSION ...... 19

EXHIBIT A: W45CI and W32CV Contour Maps

EXHIBIT B: Driving Distances between Duluth, Wausau, and Communities in the Counties

EXHIBIT C: Screencaps of WDIO Weather Maps

SUMMARY

WDIO-TV, LLC and KQDS Acquisition Corp. hereby oppose the Petition for Special

Relief filed by Gray Television License, LLC, requesting that the Media Bureau modify the local

television market for satellite carriage of television station WSAW-TV, Wausau, Wisconsin to

include the entirety of Ashland and Iron Counties, Wisconsin. Those counties are currently part

of the Duluth-Superior, DMA. Ashland and Iron Counties are, contrary to Gray’s assertions, not

traditional “orphan counties,” but are integral parts of a DMA that is split between three states,

with five Wisconsin, six Minnesota, and one Michigan county. WDIO, KQDS-TV, and other

Duluth-Superior television stations provide excellent program service to viewers in Ashland and

Iron Counties, including coverage of Wisconsin politics, news, weather, sports, and other issues.

Ashland and Iron Counties are clearly part of the “natural” market of the Duluth-Superior stations, and not of WSAW-TV.

Gray’s Petition shows that WSAW-TV has, at most, a “market nexus” with only a few small communities on the southern edges of Ashland and Iron Counties. The Petition, however, requests addition of the entirety of Ashland and Iron Counties to the local market of WSAW-TV, and Gray has utterly failed to show that WSAW-TV has a market nexus with the entirety, or even a significant portion, of those counties. WSAW-TV can show historical carriage, and over- the-air coverage, to well less than ten percent of the population of the counties. Gray’s claims of local program service to the Counties are also suspect, as the Petition does not demonstrate to what extent WSAW-TV provides any coverage of local Ashland and Iron County issues in its over-the-air programming, nor that it produces any significant amount of coverage on its own, as opposed to “reposting” coverage supplied by other sources. Even were Gray able to show that

WSAW-TV provided local program service in any meaningful way to Ashland and Iron

iii

Counties, this would not weigh in favor of the modification request, as viewers in those counties are already well served by WDIO, KQDS-TV, and other Duluth-Superior stations.

While grant of the Petition would clearly serve the interests of WSAW-TV, and Gray, it would not serve the public interest of viewers in Ashland and Iron Counties. Addition of those counties to WSAW-TV’s local satellite carriage market could undermine the ability of the

Duluth-Superior stations to continue to provide the excellent local service they currently deliver to those viewers. In its place, those viewers would receive minimal local service from

WSAW-TV, a station with, at most, a very slim “market nexus” with an extremely small number of viewers on the fringes of those counties. Gray has, in short, failed entirely to demonstrate that

Ashland and Iron Counties constitute a part of WSAW-TV’s natural market. Accordingly, the

Media Bureau should deny the Petition.

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554

TO: Marlene H. Dortch, Secretary

For transmission to the Chief, Policy Division, Media Bureau

OPPOSITION TO PETITION FOR SPECIAL RELIEF

WDIO-TV, LLC (“WDIO”) and KQDS Acquisition Corp. (“KQDS-TV”), hereby oppose the Petition for Special Relief (the “Petition”) filed by Gray Television License, LLC (“Gray”) in the above-referenced proceeding. The Petition requested modification of the local satellite carriage market of television station WSAW-TV, Wausau, Wisconsin, to include areas currently assigned by Nielsen to the Duluth-Superior DMA. The Petition fails to show that Ashland and

Iron County viewers are not well-served as part of the Duluth-Superior market or that those counties constitute a natural part of the market of WSAW-TV. Indeed, the entire Petition appears to be a “solution” in search of a problem, and a solution that would harm viewers in those counties more than it would help them.

WDIO and KQDS-TV are, respectively, licensees of the ABC and FOX network affiliates in the Duluth-Superior DMA. Both stations currently provide excellent local programming service to viewers throughout their DMA, including those in Ashland County and

Iron County, Wisconsin (the “Counties”). The stations, as demonstrated herein, provide

extensive local news coverage of issues arising in and important to the Counties, including news,

politics, sports and weather. If the Petition were granted, and a powerful national broadcaster

such as Gray introduced into the Counties, WDIO and KQDS-TV may lose viewers in those

areas, and potentially be forced to curtail coverage in the Counties. The local service provided to

the Counties by WSAW-TV that would take its place is, as described in the Petition, almost non- existent.

Indeed, the true driving force behind this Petition, and the only apparent benefit to

Ashland and Iron County viewers from its grant, would be access to a small number of additional

Green Bay Packers games each year. While the Petition appears to imply that Ashland and Iron

County residents are unable to access any Packers games, a closer analysis of the situation shows those concerns to be greatly overblown. A review of NFL coverage in the Duluth-Superior and

Wausau DMAs going back to 2011 shows that there are, at most, four weeks out of an average

NFL season in which Duluth-Superior DMA viewers are unable to watch a Green Bay game.1

As popular as the NFL, and the Green Bay Packers, are, such games will in any event be viewed

only by a minority of overall television viewers. While granting the Petition would certainly benefit Gray by allowing it to access a new market, the public interest served by providing these

3-4 games to less than half the viewers in the market would be far outweighed by the harm of potentially losing the valuable local news and weather coverage currently provided to Ashland and Iron County residents by WDIO, KQDS-TV, and the other Duluth-Superior stations. As

1 See yearly coverage charts at http://506sports.com/nfl/index.php. These charts show that in each of 2011 and 2012, there were 3 Green Bay games unavailable to Duluth-Superior viewers, and in each year from 2013-2015, there were 4 such games. While schedules remain subject to change in the 2016 season, it appears that there will again be only four games unavailable to broadcast viewers in Duluth-Superior. It is also worth noting that all games remain available to subscribers to DirecTV’s NFL Sunday Ticket service. See http://www.directv.com/sports/nfl.

demonstrated below, other than these few football games, Gray has failed to show that the

Counties are part of WSAW-TV’s natural market, or that a market modification would be justified under the Commission’s traditional market modification criteria.

I. BACKGROUND

A. County-Wide Satellite Market Modification Under STELAR.

Congress and the Commission have long recognized that, on rare occasions, assignment of certain communities by Nielsen to one of its Designated Market Areas (DMAs) does not accurately reflect the true local market of a particular broadcast station for various reasons. For purposes of cable carriage, since 1992, a process has been in place by which broadcast stations or cable companies may petition the FCC to modify the local market of a given station to add, or delete, specific communities. In implementing this process, the Commission’s overarching goal has been to determine a station’s “natural” local market through showings that the communities in question have a “market nexus” with the station.2

In 2014, Congress passed STELAR, which provided the Commission with the authority

to modify local markets for purposes of satellite carriage.3 In 2015, the Commission adopted

rules implementing that authority, and providing a mechanism for such modifications.4 In the

STELAR Order, the Commission largely applied the same standards to satellite market

modifications as have historically been applied to those in the cable context, with a few

2 See, e.g., CoxCom, LLC, 30 FCC Rcd 10978 (Med. Bur. 2015); CoxCom, Inc. d/b/a Cox Communications Orange County, 19 FCC Rcd 4509 (Med. Bur. 2004).

3 The STELA Reauthorization Act of 2014, Pub. L. No. 113-200, 128 Stat. 2059 (2014) (codified at 47 U.S.C. § 338(l)).

4 Amendment of the Commission’s Rules Concerning Market Modification, Report and Order, 30 FCC Rcd 10406 (2015) (“STELAR Order”).

important differences, based in part on the technical differences between satellite and cable

carriage. Importantly for this case, one difference is that a satellite market modification is

applied on a county-by-county basis, whereas a cable market modification would be evaluated

for each specific community served by a cable system.5 As the Commission recognized in

refusing to adopt a presumption that previous cable market modifications adding a community to

a station’s market would justify adding an entire county to that market, there may be important

differences in demonstrating a “market nexus” across an entire county as opposed to only in a

given cable community.6 That problem is pointed out in stark relief by the instant case. While

Gray has provided some limited evidence that it may have a market nexus with a small number

of communities in the far southern portions of Ashland and Iron Counties, those communities make up an extremely small portion of the Counties as a whole. As discussed more fully below,

Gray’s evidence at most shows a market nexus (and a limited one at that) with ten percent or less of the population of the Counties. Gray has not shown that there is any local nexus between

WSAW-TV and the Counties taken as a whole. To WDIO and KQDS-TV’s knowledge, Gray’s

Petition is the first filed under the new STELAR satellite market modification procedures and, as such, affords the Commission its first opportunity to establish standards for the type of showing that will be required to show a market nexus with an entire county. As demonstrated herein, the extremely limited connections Gray has shown with tiny portions of Ashland and Iron Counties cannot support such a finding. Grant of Gray’s Petition would, in effect, allow WSAW to

“bootstrap” carriage throughout Ashland and Iron Counties based on limited evidence of a weak market nexus with very small portions of those counties.

5 Id. at § III(F).

6 Id. at 10425-10426.

B. Ashland and Iron Counties and the Duluth-Superior DMA.

In implementing STELAR, in addition to adopting rules for satellite market modification,

the Commission also added a new factor to consider (in both cable and satellite market

modifications) related to promoting the delivery of in-state programming. This provision was

included in STELAR, and the FCC’s implementing regulations, largely to address the issue of

“orphan counties.” While the Commission has recognized that there is no specific definition of

“orphan counties,” the term has generally been applied to the “situation in which a county in one state is assigned to a neighboring state’s local television market” and therefore cannot receive in- state programming.7 For some counties, which are on the fringes of DMAs made up largely of

counties in other states, this factor may allow them to gain access to coverage of news and other

issues relevant to their states that has not previously been provided by their DMA stations.

While WDIO and KQDS-TV recognize the hardships that some “orphan counties” may

experience, the simple fact is that Ashland and Iron Counties do not suffer those difficulties, and

are not traditional “orphan counties.” Contrary to Gray’s assertions, the Duluth-Superior DMA

is not a “Minnesota DMA,” but is rather a “Minnesota-Wisconsin DMA.” Out of the 12 counties

that make up the DMA, five are Wisconsin counties – Douglas, Bayfield, Sawyer, Ashland, and

Iron.8 Even in naming the DMA, Nielsen recognized this, assigning it the names of communities

in both Minnesota and Wisconsin. To claim that Ashland and Iron Counties are “orphan

counties” in the traditional sense is akin to claiming that Loudon County, Virginia, is an orphan

county because the majority of its television stations are licensed to the District of Columbia.

7 Id. at 10408.

8 The DMA also includes Carlton, Cook, Itasca, Koochiching, Lake, and St. Louis counties in Minnesota and Gogebic County, Michigan.

More importantly, and as more fully demonstrated below, while only one Duluth-Superior DMA

station is licensed to a community in Wisconsin, WDIO, KQDS-TV, and other Duluth-Superior stations provide extensive coverage of Wisconsin politics, news, sports, weather, and other community events and issues of local importance. Indeed, with five of the twelve counties in their DMA being Wisconsin counties, they must do so.

Ashland and Iron Counties are well integrated into the Duluth-Superior DMA, and are clearly part of that local market. While Gray claims that Ashland and Iron are located in the

“heartland” of Wisconsin, a simple review of a map would contradict this statement. The

Counties are located in far northern Wisconsin, on Lake Superior, as are Duluth, Superior, and other communities in the Duluth-Superior DMA. WSAW-TV, and other Wausau stations, on the other hand, are all located well inland. As shown below, the majority of the population of

Ashland and Iron counties live far closer to Duluth and Superior than they do to Wausau, and many more of those residents commute to jobs in the Duluth-Superior DMA than to jobs in the

Wausau DMA. Based on the information submitted with the Petition, 81 residents of Ashland commute to St. Louis County, Minnesota (Duluth’s home county), and an additional 13 commute to Douglas County, Wisconsin (Superior’s home county), while none commute to Wausau’s home county of Marathon.9 Of all those living in Ashland County, more than 90% work at jobs

located within the Duluth-Superior DMA, while only 8.4% commute to jobs in the Wausau

DMA. Similarly, of those who work in Ashland County, only 3.4% live in the Wausau DMA,

while 93% live in the Duluth-Superior DMA (with almost 23% living in areas of the Duluth-

Superior DMA outside of Ashland or Iron Counties). Of those living in Iron County, 84.4%

9 Petition at Exhibit C.

work within the Duluth-Superior DMA, while only 14% commute to the Wausau DMA, and less

than 1% to Marathon county.

In short, Ashland and Iron Counties are well-integrated into the Duluth-Superior DMA, and are well served by WDIO, KQDS-TV, and other television stations licensed to that DMA.

Those stations, whether they are licensed to Minnesota or Wisconsin communities, provide local

program service to resident of both states, and extensively cover local Wisconsin news, politics,

sports, and weather. The same cannot be said for WSAW-TV, which has not shown a market

nexus with the Counties.

II. GRAY’S SHOWING ON THE MARKET MODIFICATION CRITERIA DOES NOT JUSTIFY GRANT OF THE PETITION.

A. Gray’s Claims of Historical Carriage Cannot Support Grant of the Petition

In the Petition, Gray asserts that WSAW-TV, and some other Wausau stations, have

historically been carried on cable systems serving the Glidden and Butternut communities in

Ashland County and the community of Mercer in Iron County.10 However, a closer look at the

evidence provided shows that this in no way justifies the requested modification of WSAW-TV’s

market to include all of Ashland and Iron counties for satellite carriage purposes. Gray concedes

that it is not aware of WSAW ever having been carried on satellite systems serving Ashland and

Iron Counties.11 Moreover, even the cable carriage cited in the Petition demonstrates that while

WSAW-TV has only ever been carried to a tiny fraction of the homes in Ashland and Iron

counties. In a Petition that must demonstrate a market nexus with the entire county, this is a fatal

flaw.

10 Petition at 10-11.

11 Petition at 10, n. 32.

In Ashland County, the Butternut and Glidden systems on which WSAW-TV has been

carried are both located in the less-populated southern portion of the county, and only serve a

total of around 200 subscribers, representing less than three percent of the more than 6,500 households in the county.12 In Iron County, while a subscriber count for the Mercer system on

which Gray claims carriage was not readily available, the system passes only 300 homes, or

approximately 10 percent of the almost 3,000 households in that county.13 Assuming that not all

of these homes subscribe to the Karban TV system carrying WSAW-TV, it is almost certain that

significantly less than 10 percent of the television households in Iron County currently receive

WSAW-TV’s programming via cable or satellite.

In the cable market modification context, carriage on a specific cable system has long

been considered probative evidence that that specific system is part of a station’s local market.

For a county-wide satellite market modification, however, a petitioner must demonstrate that a

full county is part of a station’s local market. As such, a petitioner must be required to show

cable carriage throughout that county, or at least in a significant portion of it to satisfy the

“historical carriage” test. While the Commission in implementing the STELAR market

modification procedures did not address this specific issue, or establish a “threshold” level of

carriage that would be sufficient, Gray’s demonstrated carriage here is grossly insufficient under

any reasonable standard. As noted above, the systems cited by Gray as carrying WSAW-TV

deliver that signal to less than three percent of the households in Ashland County and less than

ten percent of those in Iron County. To accept such minimal carriage as evidence that the entire

12 See Petition at Exhibit F; http://www.census.gov/quickfacts/table/PST045215/55003 (showing 6,741 total households in Ashland County).

13 See Petition at Exhibit F; http://www.census.gov/quickfacts/table/PST045215/55051 (showing 2,958 total households in Iron County).

counties are part of WSAW-TV’s local market would be nonsensical. In implementing

STELAR, the Commission recognized the unfairness of such an approach when it refused to

adopt a presumption that a previously granted cable market modification for one community could demonstrate that an entire county should be part of a station’s local market.14 Here, Gray

has shown that for more than 90 percent of the areas it requests to have added to its local market,

it has never been historically carried. If anything, this clearly shows that the counties in question

are not part of WSAW-TV’s local market. As such, this factor cannot support grant of the

Petition.

B. Gray’s Claims of Local Service to the Counties Must Be Discounted.

In the Petition, Gray claims, on the basis of coverage of a few local news stories, that

WSAW-TV provides local service to Ashland and Iron Counties. This claim must fail for a

number of reasons.

First, as Gray’s own evidence shows, WSAW-TV provides over-the-air coverage to only

a tiny fraction of the area and population of Ashland and Iron Counties. WSAW-TV’s predicted

contour does not reach any part of the counties, and as the Longley-Rice map attached as Exhibit

G to the Petition demonstrates, the over-the-air signal of WSAW-TV reaches, at most, less than

two percent of the population of Ashland County, and less than three percent of the population of

Iron County. The Commission has previously held that coverage of only a de minimis portion of

a community does not demonstrate local service to those communities.15 Gray has made no

more than such a de minimis showing here.

14 STELAR Order, 30 FCC Rcd at 10425-26.

15 See CoxCom, LLC, 30 FCC Rcd at 10999.

WDIO and KQDS-TV, on the other hand, do provide over-the-air coverage to significant

portions of the population of Ashland and Iron Counties. Based on the FCC’s predicted noise

limited service contours, both stations provide coverage to the city of Ashland and western

portions of the county, including most of the county’s residents.16 KQDS-TV also operates

translator stations in Ashland and in Ironwood, Michigan (on the eastern border of Iron County) providing enhanced over-the-air service in both Ashland and Iron Counties.17

The distances between Wausau, Duluth, and population areas within the counties also strongly indicate that the counties are not part of WSAW-TV’s market. The information submitted by Gray itself shows that the distance from WSAW-TV to the City of Ashland (where the majority of the population of the county resides), is a full 166 miles, while the distance from

WDIO and KQDS-TV is only 73 miles.18 As shown in the attached Exhibit B, in terms of

driving distances, Duluth is closer to almost every sizable community in the Counties than is

Wausau. In all cases, Wausau is more than 100 miles from every one of these communities, a

16 See https://publicfiles.fcc.gov/tv-profile/wdio-dt/contour-maps and https://publicfiles.fcc.gov/tv-profile/kqds-dt/contour-maps, both showing coverage of Ashland City. Based on census data, more than half of the population of Ashland County lives in Ashland City. http://www.census.gov/quickfacts/table/PST045215/5503225,55003.

17 W45CI is licensed to Ashland and W32CV is licensed to Ironwood, Michigan. KQDS-TV holds digital flash cut construction permits for both stations that would provide each with a greatly expanded service area (see Exhibit A hereto for contour maps of the existing and proposed contours of W45CI and W32CV as filed with those flash cut permit applications). KQDS-TV is prepared to promptly implement those permits, but, if the Petition is granted may be forced to reevaluate such implementation.

18 Petition at Exhibit K. As shown in the attached Exhibit B, WDIO and KQDS-TV calculated these distances as 159 and 69.9 miles, respectively.

distance far exceeding those found in previous cases to show that areas were not part of a

station’s local market.19

Gray’s claimed showing of local programming service to the Counties must also be

discounted. Preliminarily, it is not at all clear from the Petition how much of WSAW-TV’s

claimed “service” was actually delivered in the form of programming. The exhibit Gray

submitted with its Petition ostensibly showing program service to the communities lists “Local

News Stories Concerning the Orphan Counties Aired on WSAW-TV and WZAW-TV or

Included on the WSAW-TV website.”20 Nowhere in the Petition or the Exhibit is any indication

given as to which stories were broadcast on-air and which may have appeared only on the

station’s website. Any stories appearing only on the website, however, would provide no

evidence whatsoever of programming service to the communities, as they simply do not show on-air programming. Indeed, those stories would be equally available to residents of Ashland

County, Iron County, or anywhere else regardless of the grant or denial of the Petition.

The Petition also does not show, except for two of the seven brief stories referenced in footnote 42, that any of the coverage of Ashland and Iron County events was in fact produced by

WSAW-TV, as opposed to coming from another news source, such as the Associated Press. Of the seven stories that footnote 42 of the Petition cites as the primary evidence of WSAW-TV’s service to the Counties, five were in fact simply re-postings of Associated Press stories. Based on the information provided in the Petition, it is not clear that WSAW-TV has produced and delivered any on-air coverage of issues arising in Ashland and Iron Counties. The weather

19 See Greater Worcester Cablevision, Inc., 13 FCC Rcd 22220 (Cab. Serv. Bur. 1998) (39-70 miles); Time Warner Cable, 12 FCC Rcd 23249 (Cab. Serv. Bur. 1997) (42-58 miles); see also Comcast Cable Communications, 26 FCC Rcd 14453 (Med. Bur. 2011) (140 miles).

20 Petition at n. 41 (emphasis added).

12 coverage maps submitted in Exhibit J to the Petition further undercut any claims that WSAW-TV is truly interested in providing on-air coverage of issues important to Ashland and Iron County viewers. In most of those maps, large portions of the Counties are in fact covered up by the

WSAW-TV station logo, making them significantly less useful to residents of those counties, and demonstrating that WSAW-TV’s focus is clearly on its true market, the Wausau-Rhinelander

DMA.

Even had Gray clearly shown that WSAW-TV provides local programming service to

Ashland and Iron Counties, this would not weigh in favor of the Petition. As the Bureau has previously held, where other stations do provide service to communities, a petitioner’s claims of service do not weigh in favor of a request to add communities to its market.21 As demonstrated below, WDIO and KQDS-TV both provide significant on-air programming service to Ashland and Iron Counties, far in excess of that provided by WSAW-TV.

C. Ashland and Iron Counties are Well-Served with Local Programming from WDIO and KQDS-TV.

Both WDIO and KQDS-TV provide extensive coverage of events in Ashland and Iron counties and, unlike WSAW-TV, frequently send reporters to those areas to prepare and deliver first-hand reports on those issues. In stark contrast to the “in-depth” coverage of July’s Ashland floods that WSAW-TV provided primarily by linking to Associated Press articles, both WDIO and KQDS-TV sent crews to report on those floods in person. In addition to providing weather reports warning viewers of the possibility of flooding ahead of time, WDIO sent crews to multiple locations in Ashland County to report on the initial response to the flooding, and

21 WHIO-TV, 28 FCC Rcd 16011, 16019 (Med. Bur. 2013) (“Because other stations do serve the communities, this factor neither weighs against nor in favor of WHIO’s modification request.”).

continued to provide updates in the following weeks.22 More than an hour of on-air time was

devoted by WDIO to this story during July and August. Similarly, KQDS-TV sent teams to

Ashland, Odanah, Saxon Harbor, and the Bad River Reservation to report directly on the

aftermath and recovery from these floods.

WDIO and KQDS-TV also provide extensive coverage of politics affecting Ashland and

Iron Counties. Wisconsin’s 7th Congressional District, in addition to including Ashland and Iron

Counties, also includes all of the other three Wisconsin counties in the Duluth-Superior DMA,

providing WDIO and KQDS-TV ample motivation and ability to cover these elections. WDIO

and KQDS-TV also provide coverage of elections in Wisconsin State Senate District 25, which

includes most of the Wisconsin counties in their market. This District includes almost none of the area in the Wausau DMA, and Gray has provided no evidence to indicate that WSAW-TV has, or will, cover those elections. For Gray to assert, contrary to all evidence, that stations serving the Duluth-Superior DMA would ignore politics throughout such a large portion of their market simply because their communities of license are just across the border in Minnesota is baseless.

WDIO and KQDS-TV serve viewers in the Counties through detailed weather coverage as well. Both stations include Ashland and Iron County weather in all of their daily newscasts.

As shown in the screen caps included at Exhibit C hereto from WDIO’s weather forecasts, the weather maps used by WDIO actually include Ashland and Iron Counties in a way that they are visible on-screen, providing much more useful information to viewers. Importantly, WDIO and

KQDS-TV’s weather coverage of Ashland and Iron Counties also focuses on the impact that

22 See, e.g. “Severe Storms Leave Northwest Wisconsin in Massive Destruction,” (July 12, 2016, 11:16PM), at http://www.wdio.com/news/storm-damage-destruction-wisconsin/4197537/.

Lake Superior has on weather patterns there. Meteorologists at the stations located in Duluth and

Superior, as communities located on Lake Superior, have a deep understanding of the unique weather patterns, such as severe lake effect snow, that impact coastal communities such as

Ashland. With its market located in inland areas around Wausau, it is unlikely that WSAW-

TV’s meteorologists have this expertise or focus in their coverage.

In short, it is clear that, even if WSAW-TV is providing some limited amount of on-air coverage of local issues important to Ashland and Iron Counties, other stations, such as WDIO and KQDS-TV, provide far more extensive and in-depth local program service. As such, the

Bureau should, in accord with precedent, disregard the claims of local service advanced by

WSAW-TV. Indeed, the significantly greater local service provided by WDIO and KQDS-TV in over-the-air coverage, distance from the population centers of the Counties, and program service, clearly demonstrate that the Counties are appropriately part of the Duluth-Superior local market and not the local market of WSAW-TV.

D. Access to In-State Stations.

WDIO and KQDS-TV do not dispute that WSAW-TV has a community of license located within the same state as Ashland and Iron Counties and that it thereby nominally satisfies the newly adopted market modification criterion regarding access to in-state stations. As the

Commission held in adopting STELAR, however, this factor is not “universally more important” than other factors, and instead serves as an “enhancement” for Petitions that satisfy the other factors.23 As demonstrated herein, the Petition does not satisfy those factors, and does not demonstrate that the Counties are otherwise a part of WSAW-TV’s local market. Moreover,

Ashland and Iron Counties, while they may not receive extensive service from multiple stations

23 STELAR Order, 30 FCC Rcd at 10420-21.

licensed in Wisconsin, are in no way lacking for local coverage of Wisconsin issues and do not

“lack access to local television programming that is relevant to their everyday lives,” the specific

concern that the STELAR modifications were intended to address.24

E. WSAW-TV’s Ratings Do Not Support Adding the Entirety of Ashland and Iron Counties to the Station’s Local Market.

While WSAW-TV may have measurable viewership in the Counties, that viewership is

far below the “moderate” level required to justify addition of the entirety of both counties to

WSAW-TV’s local market. The Petition claims that WSAW-TV has obtained only a 0.5 percent

share, and 2.9 cume in Ashland County for all households.25 Similarly, in Iron County, the

station has obtained a 2.0 percent share and 13 cume.26 These ratings are, not surprisingly, quite low, based on WSAW-TV’s lack of over-the-air coverage or historical carriage to the vast majority of the population of the Counties. While WSAW-TV may indeed garner decent ratings in the few communities in the far south of Ashland and Iron Counties where it is carried, this is

not sufficient to demonstrate that the entirety of those counties should be included in the station’s

local market.

While Gray claims that the ratings they show for WSAW-TV are “well in line” with prior

market modification cases, this does not appear to be entirely accurate, or is at best woefully

incomplete. In the Ackerley case, for example, the station in question garnered a 2-3 share (far above WSAW-TV’s in Ashland County), but provided a far stronger case on other market

24 Id., citing Report from the Senate Committee of Commerce, Science, and Transportation accompanying S. 2799, 113th Cong., S. Rep. No. 113-322 at 11 (2014).

25 Petition at 16.

26 Petition at 17.

modification factors.27 In particular, that station provided “Grade A” over-the-air coverage to

the communities, provided extensive on-air local news coverage, and was geographically far closer to the communities in question that their “in-market” stations.28 Here, as demonstrated

above, WSAW-TV provides little or no over-the-air service, provides questionable local

programming service, and is geographically farther away from the population centers of the

Counties than are the Duluth-Superior stations. Similarly, in the Commonwealth decision, the

Bureau relied heavily on the station’s strong over-the-air signal coverage and historical carriage

in all of the specific communities proposed to be added to establish a station’s local market

(although even there, the station demonstrated cumes well in excess of those shown by WSAW-

TV).29 In KSBW, the third decision cited by Gray, the station in question demonstrated both

Grade A signal coverage and that it garnered a 3 share and a 22 cume, far above what

WSAW-TV has shown in Ashland County, and significantly above what it has shown in Iron

County.30 In another decision not cited by Gray, the Bureau found that a station with a cume of

5.9 (well above the 2.9 for WSAW-TV in Ashland County) did not meet the “moderate level of viewership” standard.31

Viewership of WDIO and KQDS-TV, and particularly of their local news coverage, in

the Counties stand in stark contrast to WSAW-TV’s minimal viewership. Both stations are listed

by the Commission as “significantly viewed” in both Ashland and Iron Counties. The local news

27 Ackerley Media Group, 18 FCC Rcd 16199 (Med. Bur. 2003).

28 Id., 18 FCC Rcd at 16203-16204.

29 Commonwealth Broadcasting Group, Inc., 25 FCC Rcd 213, 225 (Med. Bur. 2010).

30 KSBW License, Inc., 11 FCC Rcd 2368, 2371 (Cab. Serv. Bur. 1996).

31 WRNN License Company, LLC, 21 FCC Rcd 5952, 5960 (Med. Bur. 2006).

ratings of the stations also clearly show that viewers in the Counties rely on these stations, and not on WSAW-TV, for coverage of the local issues of greatest importance to them. In May

2016, for example, WDIO earned a 15 percent share for its 6pm local newscast and a 9 percent share for its 10pm local newscast in Ashland County. At each of those time periods,

WSAW-TV’s programming had no measurable ratings. KQDS-TV’s ratings also show viewers’ reliance on that station’s local news coverage, with its late news earning a share of 3.2 in

Ashland County and 3.8 in Iron County in the January-September 2016 time frame, exceeding the station’s overall 1.4 share.

It is clear from this evidence that viewers in Ashland and Iron Counties rely on WDIO,

KQDS-TV, and the Duluth-Superior stations to provide local program service, and do not believe that those needs are served by Wausau broadcasters, further showing that these communities are appropriately part of the Duluth-Superior market, and not WSAW-TV’s local market.

III. GRANT OF THE PETITION WILL HARM LOCAL PROGRAM SERVICE TO THE COUNTIES.

As demonstrated above, it is clear that Ashland and Iron Counties are well served by stations in the Duluth-Superior DMA, and that they do not belong in the local market of

WSAW-TV. While grant of the Petition could gain those viewers access to around 3-4 Green

Bay Packers games each year, in return they may receive diminished coverage of truly important local news, politics, and weather. As small-market broadcasters, both WDIO and KQDS-TV have limited resources to devote to local news and events coverage. If the Petition were granted, and the stations were subject to competing major network affiliates in the Ashland and Iron

Counties, they may lose viewers in these areas. If this were to occur, the stations may be forced to reassess the allocation of resources for local news coverage to areas in which viewership

18 remained stronger. At the same time, the Counties would continue to constitute only a very small portion of WSAW-TV’s service area and would likely continue to receive from it only the limited local program service described in the Petition. For KQDS-TV in particular, the addition of a competing Fox network affiliate, particularly one owned by a major national operator such as Gray, could have severe consequences. In addition to a loss of viewers, with an additional

Fox affiliate in the Counties, KQDS-TV could lose significant leverage in its ability to gain carriage, and to negotiate fair carriage agreements, in those areas.

Modification of the market would also impact viewers in the further east Gogebic County in Michigan, which represents the far eastern end of the Duluth-Superior DMA. While WDIO,

KQDS-TV, and other Duluth-Superior stations provide service to this county now, creation of a

“hole” in their market could harm those stations’ ability to serve that county, creating a true

“Orphan County.” Absent an incredibly compelling showing that Ashland and Iron Counties represent part of WSAW-TV’s local market, a showing the Petition has failed utterly to make, the Commission must avoid these harms and deny the Petition.

IV. CONCLUSION

WHEREFORE, for the reasons stated, WDIO and KQDS-TV respectfully submit that the

Petition for Special Relief in the above-referenced matter should be denied.

Respectfully submitted,

___/s/__Daniel A. Kirkpatrick______Daniel A. Kirkpatrick

Frank R. Jazzo Daniel A. Kirkpatrick Fletcher, Heald & Hildreth, P.L.C. 1300 N. 17th Street – 11th Floor Arlington, Virginia 22209 703-812-0432 [email protected]

Counsel for WDIO-TV, LLC and KQDS Acquisition Corp.

October 20, 2016

Exhibit A

W45CI and W32CV Contour Maps

Devils Island COHEN, DIPPELL AND EVERIST, P.C. Consulting Engineers Washington, D.C. Rocky Island Bear Island Cat Island Ironwood Island Apostle Islands Nat Lkshr

Stockton

BAYFIELD

Porcupine Mountains SP PROPOSED 51 dBu Porcupine Mountains SP Porcupine Mountains St Park Porcupine Mountains State Park 13 LICENSED 74 dBu WASHBURN Porcupine Mountains State Park

Oula Pioneer Memorial Park Lake Park Kreher Park Beach River ODANAH Little Girls Pt County Park ASHLA3ND 137

BAYFIELD 63 Gogebic County Airport 28 118 2 Mount Zion Park WAKEFIELD Lake Gogebic State P 112 IRONWOOD M ASON MONTREAL EXHIBIT E-2 64 LICENSED ANALOG CONTOUR GOGEBIC 169 IN RELATION TO 77 Mellen Country Club PROPOSED DIGITAL FLASHCUT CONTOUR FOR MELLEN SchombergW County45C IPark, ASHLAND, WISCONSIN Camp Ob CHANNEL 45 9.332 kW MAX ERP 285 METERS RCAMSL County Park JULY 2015 IRON Oma Park B 0 5 10 15 Paines Island Kilometers Cable Union Airport Job Corps Camp CREATED WITH MAPTITUDE(r) GIS FOR WINDOWS FROM CALIPER CORPORATION Great Divide Wayside Park Bear Island Cat Island Apostle Islan ds Nat Lkshr COHEN, DIPPELL AND EVERIST, P.C. Consulting Engineers Washington, D.C.

Stockton

HOUGH ONTONAGON BAYFIELD

38 26 64 Porcupine Mountains SP 13 Porcupine Mountains State Park WASHBURN Porcupine Mountains State Park PR ONTONAGO Lake Park OPOSED 51 dBu N ODANAH Little Girls Pt C ASHLAND ounty Park 137 LICENSED 74 dBu

28 118 Gogebic County Airport 

Prickett-Grooms 112 Mount Zion Park WA Fld MASON  KEFIELD IRONW OOD Lake Gogebic State Pa MONTR3EAL rk 45 169 GOGEBIC 77 Mellen Country Club  MELLEN Schomberg County Park County Park Camp Ob 2 IRON 51 B Job Corp EXHIBIT E-2 s Camp Kuhn Island Great Divide Wayside Park LICENSED ANALOG CONTOUR IN RELATION TO Carow Park Belle Island Lake of the Falls Cou PROPOSED DIGITAL FLASHCUT CONTOUR Chequamegon Natl nty Park Frog Island Forest Glidden Industrial Park FOR W32CV, IRONWOOD, MICHIGAN 47 C CHANNEL 32 8.452 kW MAX ERP 612.7 METERS RCAMSL hequamegon Natl Fores MINERAL t JULY 2015 IRON R C hequamegon Natl Forest STAMB VILAS CAS BUTTERNUT 182 0 10 20 30 18 17 Brule River   Kilometers Rec Area Chequamegon Natl F CREATED WITH MAPTITUDE(r) GIS FOR WINDOWS FROM CALIPER CORPORATION orest Munic Airport LAC DU FLAMBEAU

Exhibit B

Driving Distances between Duluth, Wausau, and Communities in the Counties32

Community County Population33 Duluth Wausau Ashland Ashland 8,216 69.9 miles 159 miles Mellen Ashland 731 91.2 miles 134 miles Gingles Ashland 778 75.0 miles 158 miles Glidden Ashland 507 107 miles 118 miles Sanborn Ashland 1,331 84.8 miles 154 miles White River Ashland 921 73.3 miles 155 miles Jacobs Ashland 722 112 miles 125 miles Hurley Iron 1,547 108 miles 124 miles Montreal Iron 807 111 miles 127 miles Mercer Iron 1,732 130 miles 101 miles Kimball Iron 540 102 miles 132 miles

Average 96.75 miles 135.18 miles Distance

32 All distances calculated using Google Maps, based on directions from the center of the given community, as determined by Google Maps, and choosing the shortest suggested route based on mileage.

33 Population statistics derived from 2010 United States Census information available at http://factfinder.census.gov. WDIO and KQDS-TV believe that this list includes all cities, towns, and census designated places with populations of over 500 in Ashland and Iron Counties.

Exhibit C

Screencaps of WDIO Weather Maps

CERTIFICATE OF SERVICE

I, Daniel A. Kirkpatrick, hereby certify that on this 20th day of October, 2016, I caused copies of the foregoing “Opposition to Petition for Special Relief” to be placed in the U.S. Postal Service, first class postage prepaid, addressed to the following persons:

Robert J. Folliard, III* William Lake, Esq.* Assistant Secretary Chief, Media Bureau Gray Television Licensee, LLC Federal Communications Commission 4370 Peachtree Road, NE 445 12th Street, SW Atlanta, GA 30319 Washington, DC 20554

Mr. Steven Broeckaert, Esq.* DIRECTV, LLC Local-Into-Local- Deputy Chief, Policy Division, Media Market Modification* Bureau 2260 East Imperial Highway Federal Communications Commission El Segundo, CA 90245 445 12th Street, SW Attn: Vice President, Content & Washington, DC 20554 Programming Email: [email protected]

Ms. Alison A. Minea KCWV-DT Director & Senior Counsel, Regulatory 1120 East McCuen Street Affairs Duluth, MN 55808 DISH Network L.L.C. Attn: General Manager 1110 Vermont Ave NW Suite 750 Washington, DC 20005 Email: [email protected]

KDLH-DT KRII-DT 246 South Lake Avenue 246 South Lake Avenue Duluth, MN 55802 Duluth, MN 55802 Attn: General Manager Attn: General Manager

KBJR-DT WDSE-DT 246 South Lake Avenue 632 Niagra Ct. Duluth, MN 55802 Duluth, MN 55811 Attn: General Manager Attn: General Manager

WRPT-DT WJFW-DT 632 Niagra Ct. 3217 County Rd G Duluth, MN 55811 Rhinelander, WI 54501 Attn: General Manager Attn: General Manager

WFXS-DT WTPX-DT 1000 N. 3rd Street 6161 North Flint Road Wausau, WI 54403 Suite F Attn: General Manager Glendale, WI 53209 Attn: General Manager

WMOW-DT WYOW-DT 1908 Grand Avenue 1908 Grand Avenue Wausau, WI 54403 Wausau, WI 54403 Attn: General Manager Attn: General Manager

WHRM-DT WLEF-DT 821 University Avenue 821 University Avenue 7th Floor 7th Floor Madison, WI 53706 Madison, WI 53706 Attn: General Manager Attn: General Manager

K26KF-D/K35JN-D Iron County Clerk EICB-TV East, LLC 300 Taconite St. P.O. Box 54025 Suite 301 Hurst, TX 76054 Hurley, WI 54534 Attn: Randy Weiss, PhD

Iron County Commission Ashland County Executive Committee 300 Taconite St. 511 Lincoln Street Suite 301 P.O. Box 603 Hurley, WI 54534 Mellen, WI 54546 Attn: Thomas Bergman, Chairperson, Iron County IT Committee

Ashland County Courthouse 201 W. Main St. Room 202 Ashland WI 54806 Attn: County Clerk

___/s/__Daniel A. Kirkpatrick______Daniel A. Kirkpatrick

* via e-mail and United States mail