Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554
In the Matter of
ORA Y TELEVISION LICENSEE, LLC WTAP-TV (Fac. ID No. 4685) CSR - 8759-N WIYE-LD (Fac. ID No. 130392) MB Docket No. 13-16 WOVA-LD (Fac. IDNo. 125125) Parkersburg, West Virginia
Petition for Waiver of Sections 76.92(f) and 76.106(a) ofthe Commission's Rules
To: Office ofthe Secretary, Federal Communications Commission Attn: Chief, Media Bureau
CONSOLIDATED REPLY
Gray Television Licensee, LLC ("Gray"), licensee ofWTAP-TV, WIYE-LD, and
WOVA-LD, Parkersburg, West Virginia, hereby submits this Consolidated Reply in the above- captioned proceeding, which seeks waivers ofthe "significantly viewed" exceptions to the network non-duplication rule and the syndicated exclusivity rule with respect to WOWK-TV,
Huntington, West Virginia, and WVAH-TV, Charleston, West Virginia, for the benefit of
WTAP-TV. 1
The Oppositions to Gray's Petition for Special Relief misconstrue both the facts and the well-settled precedent governing this proceeding. Some opponents even offer misplaced rhetoric about the alleged "need" to protect distant stations outside of their licensed markets and to overhaul the entire significantly viewed waiver process and apply new standards for the first time here. As demonstrated herein, Gray's Petition submitted sufficient evidence to warrant an
1 This Consolidated Reply is timely filed pursuant to an extension granted by the Media Bureau. See Letter from Simon Banyai, Attorney Advisor, to John E. Fiorini III, eta!. (March 1, 2013). immediate grant of the requested relief consistent with applicable Commission rules and precedent.
Background
When it signed on almost sixty years ago, WTAP- TV broadcast programming from the
NBC, ABC, and CBS networks. In 1970, it became a primary affiliate of NBC and ceased to broadcast other networks' programs. Digital technology, however, allowed WTAP-TV to add additional program streams comprised of network, syndicated, and local programming for the small Parkersburg television market (DMA 193). In 2006, Gray contracted for the rights to broadcast Fox, UPN, and other programming on WTAP-TV's multicast channels. In 2012, Gray purchased two silent analog LPTV stations, renamed them WIYE-LD and WOVA-LD, and quickly constructed new digital high definition transmission facilities for the LPTV stations.
Gray also entered into agreements authorizing Gray to broadcast Fox on WTAP-TV and
WOVA-LP and to broadcast CBS on WTAP-TV and WIYE-LP. Today, WTAP-TV broadcasts
NBC on channel15.1, CBS on channel15.2, and Fox on channel15.3.2 The Fox and CBS affiliation agreements confer network non-duplication rights on these channels to the full extent permitted by the FCC.3
On December 27, 2012, Gray submitted its Petition for Special Relief seeking waivers of the significantly viewed exceptions in 47 C.P.R. §§ 73 .92(f) and 76.106(a) so that Gray may enforce its network non-duplication and syndicated program exclusivity protection rights in
Parkersburg with respect to the programming ofWOWK-TV and WVAH-TV that duplicates that broadcast by WTAP-TV. In response, the licensees ofWOWK-TV (West Virginia Media
2 Exhibit A is a screen capture of the WTAP-TV over-the-air channels as seen from the station's broadcast monitor. The fourth image (channel 15.4) is a local weather loop. 3 Exhibit B includes the relevant provisions of the Fox and CBS affiliation agreements, as well as the network non-duplication notices that WTAP- TV sent Suddenlink regarding this programming.
Page 2 Holdings, LLC, "WVMH")) and WV AH-TV (WV AH Licensee, LLC, "Cunningham"), as well as the incumbent cable operator in Parkersburg (Cequel Communications, LLC d/b/a Suddenlink
Communications, "Suddenlink"), each filed an Opposition.
Each of the opponents argues that Gray's low power television stations in Parkersburg,
WOVA-LD and WIYE-LD, are not entitled to program exclusivity protection under the
Commission's rules. WVMH and Suddenlink also allege that none of Gray's station are entitled to syndicated exclusivity ("syndex") protection because both WOWK-TVand WVAH-TV have noise-limited contours that may include a part of the City of Parkersburg. WVMH and
Suddenlink attack the Nielsen study, claiming that the sample size is too small to be reliable and the use of combined survey data fails to show whether there was at least one diary in each survey period. Cunningham argues that the Petition should be dismissed because it did not include a viewership study for an additional Zip Code. Finally, WVMH argues that the Commission's waiver policies and precedents need to "evolve" and that new standards should be applied for the first time here. Each argument in turn is an increasingly strained attempt to ensure that large market stations continue to deliver network programming into a very small market despite the
Commission's unquestioned public policy goal of promoting localism, and despite the decisions ofWOWK-TV's and WVAH-TV's own networks to license Gray to distribute their content in
Parkersburg rather than WVMH and Cunningham.
I. The Network Non-Duplication and Syndex Arguments Are Irrelevant Because WTAP is Entitled to Network Non-Duplication Protection in Parkersburg for Fox and CBS Programming.
WVMH and Suddenlink spill considerable ink proving the undisputable point that full- power television stations enjoy network non-duplication and syndicated exclusivity rights while
LPTV stations do not enjoy such rights. This is a well-established principle beyond dispute.
Page 3 As a full-power television station, WTAP-TV enjoys network non-duplication and syndicated exclusivity rights with its zone of protection to the full extent permitted by its program suppliers and the Commission's rules. WTAP-TV is entitled to network non-duplication protection for the CBS and Fox programming that it broadcasts on channels 15.2 and 15.3, respectively, within 55 miles of its community oflicense, Parkersburg.4 Nothing in the
Commission's rules, decisions, or policies act to revoke these network non-duplication rights simply because Gray chooses to simulcast this programming on LPTV stations to better serve local over-the-air viewers. 5
The opponents' heated arguments about how LPTV stations lack network non- duplication rights are, in fact, entirely correct. These arguments, however, are as utterly irrelevant to this proceeding as the fact that LPTV stations broadcast at lower power than full- power stations.
WVMH and Suddenlink also argue that Gray cannot obtain a waiver of the "significantly viewed" exception to the syndex rules because WOWK-TVand WVAH-TVappearto deliver digital signals to some portion of Parkersburg. Engineers notoriously differ over the accuracy of computer models that predict the reception of digital signals in mountainous terrain like that found in the Parkersburg markets. For Gray to engage these opponents over the methodologies they used to present their technical arguments would only waste the Bureau's resources. The indisputable fact that WTAP-TV is entitled to network non-duplication protection in Parkersburg
4 47 C.P.R.§ 76.92. 5 In a single sentence in a footnote, Cunningham claims, without offering any justification, that the rationale for denying LPTV stations program exclusivity protection "should be applied" now to multicast channels of full-power stations. See Cunningham Opposition at n.l. Whatever the merits of such a prospective change to the Commission's rules, Cunningham's effort to change the rules in this proceeding are woefully misguided. See Section III, infra.
Page 4 with respect to Fox and CBS programming alone provides sufficient basis for the Commission to consider the merits of this Petition.
II. The Nielsen Studies Submitted by Gray Are Fully Consistent With Applicable Precedent.
According to Suddenlink, "common sense suggests" that the ten diaries submitted by
Gray from February and May 2011, and the seven diaries from February and May 2012, represent "a woefully inadequate sample for the Commission to reply upon .... "6 This is a time- worn argument that has been repeatedly rejected by the Commission.7
Suddenlink, along with WVMH, makes a related, yet equally unavailing, argument - that by submitting combined survey data, Gray fails to demonstrate that it relied on at least one diary per time period. 8 Commission policy clearly allows for the submission of combined survey data. 9 Further, Gray hereby affirms that the Nielsen study relied upon more than one diary in each survey period.
In its Opposition, Cunningham raises only one serious argument. Specifically, it claims that the Bureau must dismiss the Petition because Nielsen did not include a viewership study for the ZIP Code 26105. Cunningham bases its argument on the U.S. Postal Service website's
"Look Up a ZIP Code-by address" feature. There, a user obtains all the ZIP Codes to which the
Postal Service will deliver mail using the identified community's name.
6 Suddenlink Opposition at 5. 7 See, e.g., Gulf-California Broadcast Company and Journal Broadcast Corporation Petition for Waiver of Section 76.92(j) and 76.106(a) of the Commission's Rules, Memorandum Opinion and Order, 26 FCC Red 15027 (rel. Oct. 24, 2011) (rejecting a cable operator's argument that petitioners' significantly viewed waiver request should be denied due to an "exceedingly small" sample size consisting of just 3 in tab households in each of two survey years and affirming that the Commission's rules "do not require a sophisticated statistical analysis, but rather constitute a practical methodology .... "). 8 Suddenlink Opposition at 8. See also WVMH Opposition at 5. 9 47 C.F.R. § 76.54(b) ("[i]ftwo surveys are taken, they shall include samples sufficient to assure that the combined surveys result in an average figure at least one standard error above the required viewing level.") (emphasis added).
Page 5 ZIP Code assignments have never served as a definitive source of jurisdictional
boundaries; rather ZIP Codes are maintained strictly to route mail delivery. 10 Moreover, even when a particular ZIP Code follows a jurisdictional boundary, the Postal Service will still deliver mail that uses the name of certain nearby areas or communities. 11 Here, the same "Look Up a
ZIP Code" feature, when using the "Cities by ZIP Code" inquiry reveals, in oversized bold print, that 26105's "preferred city" is Vienna, West Virginia. 12 In smaller print, the results page lists
Parkersburg under "Other acceptable cities." Consequently, the only "evidence" that
Parkersburg lies within ZIP Code 26105 is an online inquiry that actually proves nothing of the sort. The Bureau therefore may easily dismiss Cunningham's Opposition.
III. WVMH's Rhetoric Aside, the Instant Proceeding Is Limited in Scope and Not a Platform for Revising Generally Applicable Commission Rules and Policies.
WVMH' s Opposition also argues that a grant of the Petition would unfairly deprive its
Charleston station of what it apparently views as a right to perpetual cable carriage in
Parkersburg. 13 To protect this interest, WVMH proffers a number of extreme claims, including the suggestion that the Commission's consistently applied standards for significantly viewed
1°For example, "Even though The Pentagon is located in Arlington Virginia, the United States Postal Service requires that 'Washington, D.C.' be used in conjunction with the six ZIP Codes assigned to it.. .. " www.pentagon.osd.mil/{acts-zip.html (last visited Feb. 28, 2013). 11 For example, consider the Founding Farmers restaurant located at 12505 Park Potomac Rd in Potomac, Maryland 20854. http://www. wearefoundingfarmers.com/ (last visited Feb. 28, 20 13). It is located within the boundaries of the community of Potomac. The "Look Up ZIP Code" inquiries indicate that 20854's preferred city is Potomac, but Rockville is an acceptable city. The online tool also identifies numerous ways to address mail to this location using both Potomac and Rockville as the city associated with this ZIP Code. See Exhibit C (pages from https://tools.usps.com/golziplookupaction input, http:llwww.mapquest.com/print?a=app.core.b88fc3Iacl8b3b7eafcb8144 and http://www.maptechnica.com/map tools cities.ptp) (last visited Feb. 28, 2013). 12 Vienna is a separately incorporated city of West Virginia located north of Parkersburg. It has its own mayor, city council, police, fire, parks and recreation, building inspection, and public works depattments. See www. vienna-wv.com. 13 See WVMH Opposition at 11-12.
Page 6 waivers need to "evolve" in a manner that mandates the perpetual carriage ofWOWK-TV's signal in the center of an adjacent, small market. 14
WVMH misunderstands the scope of the instant proceeding. First, a grant of the Petition would only require that cable operators honor the CBS non-duplication rights that CBS conferred on WT AP-TV in Parkersburg. The decision as to which station will serve as its affiliate in
Parkersburg is a decision for CBS, not the government. Indeed, for the FCC to require cable operators to carry distant WOWK-TV's signal during CBS network hours rather than the CBS affiliate located vastly closer to the system headend would violate the Commission's long- standing interest in promoting localism as well as the Communications Act. 15
Moreover, a grant of the Petition would not, as WVMH alleges, compel cable operators to cease retransmitting the allegedly relevant "local" programming that WOWK-TV broadcasts from its transmitter some 70 miles from Parkersburg. 16 To the contrary, this proceeding concerns only the carriage of network programming within WOWK-TV's signal, and the retransmission ofWOWK-TV's signal during other time periods is, and remains, a private matter between WVMH and Suddenlink.
To the extent that WVMH now seeks an "evolution" of the Commission's rules in some undefined manner, and their application to Gray's Petition, long-standing principles of
14 !d. at 10. 15 47 U.S.C. § 534(b)(2)(B); accord, 47 C.F.R. § 76.56(b)(5). WVMH makes much of the fact that its signal should be carried in Parkersburg notwithstanding its lack of viewership because it allegedly has been carried by the local cable system for many years. See WVMH Opposition at 2. Regardless of historical carriage, however, the fact remains that CBS has now decided to license its programming for broadcast in Parkersburg to a television station located in that community rather than a station licensed to a community sixty or more miles away. And in point of fact, contrary to the suggestion in the WVMH Opposition, WOWK-TV is not the only CBS affiliate historically carried on the Parkersburg cable system. Rather, since cable service began in Parkersburg, the local cable system has also carried Columbus, Ohio, CBS affiliate WBNS-TV, which, unlike WOWK-TV, did not leave CBS for a twenty four year stint as an ABC affiliate. 16 Cunningham Opposition at 11 .
Page 7 administrative due process preclude such a result. 17 Moreover, the time is long past for WVMH to seek reconsideration of Sections 76.5(i) and 76.54 ofthe Commission's rules. Quite simply, the Bureau must apply here the same rule, policies, and precedents that it has applied to similarly situated petitions regardless of WVMH's perceptions of some unique right to mandatory carriage in Parkersburg of the programming it purchased from CBS for the Charleston-Huntington DMA.
As the U.S. Supreme Court has observed, "rulemaking is generally [a] better, fairer, and more effective method of implementing a new industry-wide policy than the uneven application of conditions in isolated adjudicatory proceedings." 18
III. Conclusion
None of the Oppositions presents any reason to dismiss the Petition or even delay an expeditious grant. Gray has indisputably obtained network non-duplication rights to CBS and
Fox programming in the community of Parkersburg, and it has demonstrated that WOWK-TV and WV AH-TV lack sufficient over-the-air viewership to maintain significantly viewed status in that community. Consequently, Gray respectfully requests a waiver of the significantly viewed exceptions so that it may enforce WT AP-TV's network no duplication rights in its Parkersburg against the duplicating network programming ofWOWK-TV and WVAH-TV.
17 See Melody Music, Inc. v. FCC, 345 F.2d 730 (DC Cir. 1965). 18 E.g. , Alton Rainbow Corp. and Cox Radio, 14 FCC Red 16764, ~ 18 (1999) (quoting Capital Cities/A BC, Inc., 11 FCC Red 5841, 5888 (1996) in identifying an open rulemaking as the proper forum for reexamining the newspaper cross-ownership rule).
Page 8 Respectfully submitted,
Kevin P. Latek JohnE. ~~ General Counsel and Vice President Kathryne C. Dickerson - Law and Development Wiley Rein LLP Gray Television, Inc. 1776 K Street NW 4370 Peachtree Road, NE Washington, DC 20006 Atlanta, GA 30319 202.719.7000 404.266.8333 Counsel to Gray Television, Inc.
Dated: Marchl2, 2013
Page 9 Exhibit A
Screen Capture of WTAP-TV ChannellS Output t'£ TNC QTA- TSReader Professional 2..8.47b -F1le Export View Record Playback Forward Plugins Settmgs Help - ~PAT PID OxOOOO Program Number: 3 "' Video Decode ,+ ~ PMT PID Ox0030 - Program 3 ~ PCR on PID 49 (Ox0031) + ~ PMT PID Ox0040 - Program 4 PMT Version: 5 Service name. NBC HC + ~ PMT PID Ox0070 - Program 5 PMT PID Ox0080 - Program I ~ 6 Stream Type. Ox02 MPEG-2 Video - _M) STT PID Ox1 ffb Elementary Stream PID 49 (Ox0031) ~ 2013102.127 01 :12:59 + ~ TVCT PID Ox1 tfb Stream Type. Ox61 AC-3 Audio ~ MGT PID Ox1 fib Elementary Stream PID 52 (Ox0034 ~ I ~ EIT.oETT Stream Type· Ox61 AC-3 Audio Elementary Stream PID 53 (Ox0035)
Descriptor: A.TSC Component Name Descnptor v Active PIDs D D1sabled O Sort Decend1ng . I!J- Sort by Rate U- Sort by PID Ox0031 (58 33'l • 10 71 tvt>ps) ,.. Ox0041 (11 92'l. 2.15 tvt>ps) Ox0071 (11.91 'l. 2.18 tvt>ps) Ox0081 (11.91 'l • 2.18 tvt>ps) I Ox0044 (1.08'1. - 197.32 l
-11iinr:a•~rl!le•"' Network Type: ATSC Run Time: 000:01 00
'arsing MPEG-2 video stream from program 4 on PID 0x0041 (CBS SD) Exhibit B
WTAP-TV Notices Invoking Fox and CBS Network Non-Duplication Rights As Sent to Suddenlink Communications ONE TELEVISION PLAZA PARKERSBURG, WV 26101-7501 PHONE 304/485-4588 • FAX 304/422-3920 • www.wtap.com
July 6, 2011
Via Certified Mail, Return Receipt Requested CAS Cable 1525 DuPont Road Parkersburg, WV 26101 A TIN: Lisa Wilkinson, Vice President
Ms. Wilkinson:
As you know, WTAP-TV's Channel 15.2 serves the primary network affiliate of the Fox Television Network for the Parkersburg, WV, television market. Recently, we entered into a new affiliation agreement with Fox that confers network non-duplication protection through the term of that agreement, which expires on June 30, 2014. The terms of our network non-duplication rights are set forth in the attachment hereto.
WTAP-TV broadcasts regularly scheduled Fox Television Network programming during the following time periods:
Monday-Saturday 8:00- I 0:00pm Sunday 7:00-10:00 pm Weekend, All Star & Post Season Sports (including pre-game and post-game shows)
From time to time, WTAP- TV broadcasts Fox network programs in additional time slots, including news, sports, pre- and post-game shows, and awards programs.
FCC rules prevent local cable systems from carrying the signal of any other television station when such other station broadcasts Fox programming. If your cable system has been honoring WTAP TV's network exclusivity rights, we thank you for your cooperation and request that you continue these efforts through the duration of our affiliation agreement. If your cable system has not been honoring WTAP-TV's rights (for e.xample, by importing out-of-market Fox signals), we hereby assert our right to require your cable system to begin providing program exclusivity at the earliest practical date, but in no event later than sixty days from your receipt of this letter.
Please contact me if you have any questions concerning WTAP-TV.
!L~/J~ m.Sheppard Vice President I General Manager Attachment 11 AMENDMENT TO FOX BROADCASTING COMPANY ("FOX ) STA TlON AFFILIATION AGREEMENT REGARDlNG NETWORK NONDUPLICA TION PROTECTION
For and in consideration of their mutual undertakings, the undersigned parties hereby agree to amend their Station Affiliation Agreement as follows to accommodate the Federal Communication Commission's ("FCC") revised network nonduplication rules:
Licensee shall by the terms of this Amendment be entitled to invoke protection within the geographic zone described herein against the duplication of FOX programming by any other analog or digital television signal carried by a Multichannel Video Programming Distributor against which and to the extent Licensee is entitled to assert nonduplication protection under the Communications Act, the Satellite Home Viewer Extension and Reauthorization Act of 2004, including any amendments thereto, and any successor or replacement law or statute ("SHVERA") and the rules and regulations of the FCC. Such right shall apply to all FOX programming for the duration of the FOX Station Affiliation Agreement for Station WTAP-DT C'Station"), the term of which commences on July 1, 2011. For the duration of said Affiliation Agreement, Licensee's rights shall apply to both simultaneous and non-simultaneous duplication. Licensee shall be entitled to invoke nonduplication protection in the area within 55 miles ofthe FCC's reference point for Parkersburg, WV and, if Station is in a Hyphenated Market for purposes of FCC nonduplication rules, in the area within 55 miles of the FCC's reference point for each other Designated Community within such Hyphenated Market; provided, however, that Licensee shall not invoke said nonduplication protection beyond the boundaries designated as the Parkersburg, WV Designated Market Area ("DMA") as defined by Nielsen.
June 6, 2011 Date: ------
Date: {c -f I ~ I/
C:\Documents and Scltings\jim.rynn\My Documcnts\fOX\Fox 20 11 Ncgutiation\Fox Long Form Agrccments\fOX Afil1intion 2011· 2014 FINAL\Fox Afil1intion ·Execution Copics\WTAP NONDUP7RDx.doc February 27,2013
Via Certified Mail, Return Receipt Requested Cequel III Programming LLC 12444 Powerscourt Dr., Suite 140 St. Louis, MO 63131 ATTN: Sr. VP Legal Dept.
Dear Ladies and Gentlemen:
As you know, WTAP-TV's channel 15.2, which is licensed to Gray Television Licensee, LLC, is the primary network affiliate of the CBS Television Network for the Parkersburg, WV, television market. Our affiliation agreement expires on December 31,2016. Recently, we entered into an amendment to our affiliation agreement that protects our station through the term of the agreement against the duplication of CBS network programming from another television station during the period beginning one day before and ending seven days after the delivery the network program. The terms of our network non-duplication rights are set forth in the attachment.
WTAP broadcasts regularly scheduled CBS Television Network programming during the following time periods:
Monday 2:00-5:00 am, 6:30am-9:00am, 11:00 am- 12:00 pm, 12:30 - 4:00 pm, 6:30- 7:00 pm, 8:00- 11 :00 pm, 11:35 pm - I :35am Tuesday-Friday 2:05-5:00 am, 6:30-9:00 am, 11:00 am - 12:00 pm, 12:30-4:00 pm, 6:30 -7:00 pm, 8:00- 11:00 pm, 11:35 pm - 1:35am Saturday 7:00- 11:00 am, 6:30 - 7:00pm, 8:00- 11:00 pm Sunday 7:00 - 8:00 am, 9:00- 11:00 am, 6:30-11:00 pm
From time to time, we also broadcast CBS network programs, including news and sports, in additional time slots.
FCC ru les prevent local cable systems from carrying the signal of any other television station when such other station broadcasts CBS programming. If your cable system has been honoring our station's network exclusivity rights, we thank you for your cooperation and request that you continue these efforts through the duration of our affiliation agreement. If your cable system has not been honoring our station's rights (for example, by importing out-of-market CBS signals), we hereby assert our right to require your cable system to begin providing program exclusivity at the earliest practical date, but in no event later than sixty days from your receipt of this letter.
Please contact me if you have any questions concerning this request.
in rely, //&!M~Af
H. rep~
Attachment (Non-duplication Amendment) February 27, 2013
Via Certified Mail, Return Receipt Requested Cequel Ill Programming LLC 12444 Powerscourt Dr., Suite 140 St. Louis, MO 63131 ATfN: Sr. VP Programming
Dear Ladies and Gentlemen:
As you know, WTAP-TV's channel 15.2, which is licensed to Gray Television Licensee, LLC, is the primary network affiliate of the CBS Television Network for the Parkersburg, WV, television market. Our affiliation agreement expires on December 31, 2016. Recently, we entered into an amendment to our affiliation agreement that protects our station through the term of the agreement against the duplication of CBS network programming from another television station during the period beginning one day before and ending seven days after the delivery the network program. The terms of our network non-duplication rights are set forth in the attachment.
WTAP broadcasts regularly scheduled CBS Television Network programming during the following time periods:
Monday 2:00- 5:00am, 6:30am-9:00am, 11:00 am - 12:00 pm, 12:30-4:00 pm, 6:30 - 7:00pm, 8:00 - 11:00 pm, 11:35 pm - 1:35am Tuesday-Friday 2:05-5:00 am, 6:30-9:00 am, 11:00 am- 12:00 pm, 12:30-4:00 pm, 6:30- 7:00pm, 8:00- 11:00 pm, 11:35 pm- l :35 am Saturday 7:00-11:00 am, 6:30-7:00 pm, 8:00 - 11:00 pm Sunday 7:00 - 8:00 am, 9:00 - I I :00 am, 6:30 - II :00 pm
From time to time, we also broadcast CBS network programs, including news and sports, in additional time slots.
FCC rules prevent local cable systems from carrying the signal of any other television station when such other station broadcasts CBS programming. If your cable system has been honoring our station's network exclusivity rights, we thank you for your cooperation and request that you continue these efforts through the duration of our affiliation agreement. If your cable system has not been honoring our station's rights (for example, by importing out-of-market CBS signals), we hereby assert our right to require your cable system to begin providing program exclusivity at the earliest practical date, but in no event later than sixty days from your receipt of this letter.
Please contact me if you have any questions concerning this request.
Attachment (Non-duplication Amendment) February 27, 2013
Via Certified Mail, Return Receipt Requested Suddenlink Communications P.O. Box 1220 4038 Teays Valley Road Scott Depot, WV 25560 A TIN: Michael Kelemen
Dear Michael:
As you know, WTAP-TV's channel15.2, which is licensed to Gray Television Licensee, LLC, is the primary network affiliate ofthe CBS Television Network for the Parkersburg, WV, television market. Our affiliation agreement expires on December 31, 2016. Recently, we entered into an amendment to our affiliation agreement that protects our station through the term of the agreement against the duplication of CBS network programming from another television station during the period beginning one day before and ending seven days after the delivery the network program. The terms of our network non-duplication rights are set forth in the attachment.
WTAP broadcasts regularly scheduled CBS Television Network programming during the following time periods:
Monday 2:00-5:00 am, 6:30am-9:00am, 11:00 am -12:00 pm, 12:30 -4:00 pm, 6:30- 7:00pm, 8:00- 11:00 pm, 11:35 pm- 1:35am Tuesday-Friday 2:05-5:00 am, 6:30-9:00 am, 11:00 am- 12:00 pm, 12:30-4:00 pm, 6:30- 7:00pm, 8:00- 11:00 pm, 11 :35 pm- 1:35am Saturday 7:00- 11:00 am, 6:30- 7:00pm, 8:00- 11:00 pm Sunday 7:00- 8:00am, 9:00- 11:00 am, 6:30- 11:00 pm
From time to time, we also broadcast CBS network programs, including news and sports, in additional time slots.
FCC rules prevent local cable systems from carrying the signal of any other television station when such other station broadcasts CBS programming. If your cable system has been honoring our station's network exclusivity rights, we thank you for your cooperation and request that you continue these efforts through the duration of our affiliation agreement. If your cable system has not been honoring our station's rights (for example, by importing out-of-market CBS signals), we hereby assert our right to require your cable system to begin providing program exclusivity at the earliest practical date, but in no event later than sixty days from your receipt of this letter.
Please contact me if you have any questions concerning this request. !J!:iyl£ cf2_M/d' ~~.Shep~ 1 Attachment (Non-duplication Amendment) General Manager February 26, 2013
Ladies & Gentlemen:
Reference is made to the CBS Television Network Affiliation Agreement (''the Agreement") dated September 1, 2012, between you and us authorizing the broadcast of CBS Television Network programming on stations WIYE-LP and WTAP-TV Parkersburg, West Virginia. In order to clarify the right of WTAP- TV to exercise the protection against duplication of network programming, as provided by Sections 76.92 through 76.95 and Sections 76.120 through 76.122 of the FCC's rules, and to reiterate the right ofWIYE-LP to exercise such protection if said rules are amended to apply to low power stations, this will amend Paragraph 12 of the Agreement to read as follows:
"12. Non-Duplication ofNctwork Programs.
(a) For purposes of this paragraph, a television station's "Network Exclusivity Zone" shall mean the zone within thirty-five (35) miles of the station's reference points, or, in the case of a "small market television station," as defined in Section 76.92 of the FCC rules, the zone within 55 miles of said reference points; provided, however, that in no case shall the "Network Exclusivity Zone" include an area within the Designated Market Area ("DMA"), as determined by A.C. Nielsen Company, of another CBS Television Network Affiliate. A station's "reference points" for purposes of this paragraph shall be as defmed in Section 73.658(m) of the FCC rules, and shall be deemed to include, with respect to a station in a hyphenated market, the reference points of each named community in that market.
(b) . Broadcaster shall be entitled to exercise, within Affiliated Station's NetWork Exclusivity Zone, the protection against duplication of network programming, as provided by Sections 76.92 through 76.95 and Sections 76.120 through 76.122 of the FCC's rules (the "Non-Duplication Rules"), with respect to a Network Program during the period beginning one (I) day before and ending seven (7) days after the delivery of such Network Program by CBS to Broadcaster; provided, however, that such right shall apply only to Network Programs broadcast in the live time period as offered or on no more than a one day delay as accepted by CBS; and provided further that nothing herein shall be deemed to preclude CBS from granting to any other broadcast television station licensed to any other community similar network non-duplication rights within that station's Network Exclusivity Zone, and Broadcaster's aforesaid right of network non-duplication shall not apply with respect to the transmission of the programs of another CBS affiliate (current or future) by a "community unit," as
H:\NON-OUP LETJ'l;RS\CDS_NY -MStiS78-v i-Gn.y_Non-Dupc (WlYil-LP PukmiNrg).do< Non-Duplication Letter Page 2
that tenn is defined by the rules of the FCC, located (wholly or partially) within the area in which Broadcaster's Network Exclusivity Zone overlaps the Network Exclusivity Zone of that other CBS affiliate. For avoidance of doubt, "Affiliated Station" as used in this Paragraph 12 shall be deemed to refer to WTAP-TV and, at such time as the Non-Duplication Rules may be amended to apply to low power stations, also to WIYE-LP.
(c) Without limitation of its other remedies hereunder, in the event of a material breach of this Agreement by Broadcaster, CBS may on 60 days prior written notice revoke Broadcaster's right under this Paragraph to exercise protection against the duplication of network programming under the above mles ofthc FCC."
Paragraph 12 of the Agreement is hereby re-confirmed, as amended, and all other terms and conditions of the Agreement remain in full force and effect.
Please signify your agreement by signing in the space indicated below and returning one copy of the signed amendment.
Very truly yours,
CBS AFFILIATE RELATIONS a Unit of CBS Corporation
Date: February 26, 2013
AGREED AND ACCEPTED:
By: ~~~~~L_~~~
Date: d- Q?&.- /..3
11:\NO N-DUP LETTERS\ CBS _NY -M86S78-vi-Gray_ Non-Dupe (WIYE- Ll' Parkenburg).doc Exhibit C
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Search Results for: "founding farmers" near
Founding Farmers Founding Farmers 12505 Park Potomac Ave 1924 Pennsylvania Ave NW Potomac, MD 20854 Washington, DC 20006 (301) 340-8783 (202) 822-8783
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http://www .mapques t.com/print?a=app .core.b88fc3 1ac 18b3 b7eafcb8 144 U.S. City and State: jPotomac Map of Potomac, Maryland
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This page shows a boundary map for Potomac, Maryland (39.01333237, -77 .19358063), and surrounding cities , Including Cabin John (/city/Cabin John/MOl, Glen Echo (/city/Glen Echo/MOl. North Bethesda Vclty/North Bethesda/MOl, Bethesda !/city/Bethesda/MOl, Travllah Velty/Travllah/MO!, and Great Falls !/city/Great FallsNAI. View a different version of this map: Z IP Code Boundary Mao 1/map tools zip boyndarv maps.php?lat=39.01333237& lon=-77.19358063) ZIP Code Area Map 1/map tools zip area maps.php?lat=39.01333237&1on=-77.19358063) US Cities (!map tools citles.php?lat-39.01333237&/on=-77 .19358063) US Counties (!map tools countles.php?lat=39.01333237&1on--77.19358063) ______... ------
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By Address By Company Cities by ZIP Code'" Ship Abroad fo r One Low Rate The preferred city in 20854 is ... Look up another city by ZIP Code'" > loarn about Prionly M.,u lntornatlonar> Flat Rates 1 <:_ POTOMAC MD
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ROCKVILLE MD
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Several addresses matched the information you provided. Perhaps you didn't enter a street number or the ' ~ building has multiple units. ~ ...... _
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ROCKVILLE MD 20847 This ZIP Code m used for a specific PO BOX
ROCKVILLE MD 20848 This ZIP Code'" used for a specific PO BOX
ROCKVILLE MD 20849 This ZIP Code'" used for a specific PO BOX
ROCKVILLE MD 20850
ROCKVILLE MD 20851
ROCKVILLE MD 20852
ROCKVILLE MD 20853
ROCKVILLE MD 20854
ROCKVILLE MD 20855
ROCKVILLE MD 20857 This is a UNIQUE ZIP Code m used for a specific company or organization
ROCKVILLE MD 20859 This ZIP Code m used for a specific PO BOX
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12505 PARK POTOMAC AVENUE Flat R a t es >~ ~ -::::-- ROCKVILLE MD ~~ ~ ...__,__ Several addresses matched th e Information you provided. Perhaps you didn 't enter a street number or the building ha s multiple units. --
1 ·19 of 19
12505 PARK POTOMAC AVE ROCKVILLE MD 20854·6801
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12505 PARK POTOMAC AVE ROCKVILLE MD 20854·6800
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12505 PARK POTOMAC AVE FL 5 ROCKVILLE MD 20854·6802
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12505 PARK POTOMAC AVE FL 6 ROCKVILLE MD 20854·6803
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12505 PARK POTOMAC AVE FL 7 ROCKVILLE MD 20854·6804
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12505 PARK POTOMAC AVE STE 300 ROCKVILLE MD 20854·6805
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12505 PARK POTOMAC AVE LOWR 1 ROCKVILLE MD 20854·6806
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12505 PARK POTOMAC AVE STE 200 ROCKVILLE MD 20854·6807
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12505 PARK POTOMAC AVE STE 100 ROCKVILLE MD 20854·6808
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12505 PARK POTOMAC AVE STE 130 ROCKVILLE MD 20854-6808
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12505 PARK POTOMAC AVE STE 220 ROCKVILLE MD 20854-6808
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12505 PARK POTOMAC AVE STE 250 , ROCKVILLE MD 20854-6809
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12505 PARK POTOMAC AVE STE 420 ROCKVILLE MD 20854-6810
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12505 PARK POTOMAC AVE STE (EVEN Range 510- 520) ROCKVILLE MD 20854-6811
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12505 PARK POTOMAC AVE STE 550 ROCKVILLE MD 20854-6811
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12505 PARK POTOMAC AVE STE 120 ROCKVILLE MD 20854-6812
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12505 PARK POTOMAC AVE STE 115 ROCKVILLE MD 20854-6813
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12505 PARK POTOMAC AVE STE 400 ROCKVILLE MD 20854-6814
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1 12505 PARK POTOMAC AVE STE 530 ROCKVILLE MD 20854-6815
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12505 PARK POTOMAC RD POTOMAC MD
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1 · 19 of 19
12505 PARK POTOMAC AVE POTOMAC MD 20854·6801
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12505 PARK POTOMAC AVE POTOMAC MD 20854·6800
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12505 PARK POTOMAC AVE FL 5 POTOMAC MD 20854·6802
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12505 PARK POTOMAC AVE FL 6 POTOMAC MD 20854·6803
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12505 PARK POTOMAC AVE FL 7 POTOMAC MD 20854·6804
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12505 PARK POTOMAC AVE STE 300 POTOMAC MD 20854-6805
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12505 PARK POTOMAC AVE LOWR 1 POTOMAC MD 20854·6806
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12505 PARK POTOMAC AVE STE 200 POTOMAC MD 20854·6807
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12505 PARK POTOMAC AVE STE 100 POTOMAC MD 20854·6808
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12505 PARK POTOMAC AVE STE 130 POTOMAC MD 20854-6808
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12505 PARK POTOMAC AVE STE 22 0 POTOMAC MD 20854-6808
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12505 PARK POTOMAC AVE STE 250 POTOMAC MD 20854·6809
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12505 PARK POTOMAC AVE STE 420 POTOMAC MD 20854·6810
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12505 PARK POTOMAC AVE STE (EVEN Range 510- 520) POTOMAC MD 20854-6811
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12505 PARK POTOMAC AVE STE 550 POTOMAC MD 20854-6811
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12505 PARK POTOMAC AVE STE 120 POTOMAC MD 20854-6812
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12505 PARK POTOMAC AVE STE 115 POTOMAC MD 20854-6813
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12505 PARK POTOMAC AVE STE 400 POTOMAC MD 20854-6814
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12505 PARK POTOMAC AVE STE 530 POTOMAC MD 20854-6815
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2 of2 2/28/13 7:35 PM DECLARATION OF KEVIN P. LATEK
I, Kevin P. Latek, am the Secretary of Gray Television Licensee, LLC. I hereby declare under penalty of perjury that I have reviewed the foregoing Consolidated Reply and it is true and correct to the best of my knowledge.
Kevin P. Latek
Dated: March 12, 2013 Certificate of Service
I, Jacquelyn Martin, a secretary in the law firm of Wiley Rein LLP, do hereby certify that I have on this 1ih day of March 2013, caused a copy of the foregoing "Consolidated Reply" to be served by First Class U.S. Mail postage prepaid, upon the following:
William T. Lake, Chief* Robert Harold, General Manager WV AH Licensee, LLC Media Bureau Shentel c/o WVAH-TV Federal Communications 106 South Main Street 1301 Piedmont Road Commission Edinburg, VA 22824 Charleston, WV 25301 445 12th Street, S.W. Washington, DC 20554 Sheila Bills, General Manager ION Media Charleston Econoco, Inc. License, Inc. Steven A. Broeckaert, Esq.* Route 61 601 Clearwater Park Road Media Bureau, Policy Kincaid, WV 25119-014 7 West Palm Beach, FL Division 33401-6233 Federal Communications Robert Harold, General Manager Commission Armstong Cable Services ION Media Charleston 445 12th Street, S.W. 600 East North Street License, Inc. Room 4-A865 Harrisville, WV 26362 c/o WLPX-TV Washington, D.C. 20554 600-C Prestige Drive Paul Richards, General Manager Hurricane, WV 25526 Ellen Mandell Edmundson Richards TV Cable Cohn and Marks LLP P.O. Box 2 Mountain TV, LLC 1920 N Street, N.W., Suite Jerusalem, OH 43747-0002 220 Salters Creek Road 300 Hampton, VA 23661 Washington, DC 20036 West Virginia Media Holdings, LLC Mountain TV, LLC Frederick W. Giroux P.O. Box 11848 c/o WQCW Davis Wright Tremaine LLP Charleston, WV 25339 400 Capitol Street, Suite 200 1919 Pennsylvania Ave., Portsmouth, OH 45662 N.W., Suite 800 West Virginia Media Holdings, Washington, DC 20006 LLC Jerry Stender, President c/o WOWK-TV Vital Communications Miles Mason 555 5th Avenue 214 East Main Street Pillsbury Winthrop Shaw Huntington, WV 25701 Belhaven, NC 27810 Pittman LLP 23 00 N Street, N.W. WV AH Licensee, LLC Mark Laver Washington, DC 20037 2000 W. 41st Street Public Relations Manager Baltimore, MD 21211 Zito Media Rhonda Fraas, President 611 Vader Hill Road Time Warner Cable David Bach Coudersport, P A 16915 1266 Dublin Road Vice President, Operations Columbus, OH 43215-1 008 Suddenlink Communications 173 7 7th Street Parkersburg, WV 26101-5007 Arthur Cooper Paul A. Cicelski, Esq. Debbie Cline General Manager Pillsbury Winthrop Shaw General Manager Community Antenna Service Pittman LLP Lowell Community TV 1525 Dupont Road 2300 N Street, N.W. Corp. Parkersburg, WV 26101- Washington, DC 2003 7 364 Water Street 9623 Lowell, OH 45744
* Via hand delivery