Federal Communications Commission ___ FCC 96-204 Before the Federal Communications Commission Washington, D.C. 20554

In re Application of ) ) WEIGEL COMPANY ) ) ) File No. BPCT-950111KL ) To Modify the Authorized Facilities ) of WDJT-TV, , )

MEMORANDUM OPINION AND ORDER

Adopted: May 3, 1996 Released: May 17, 1996

By the Commission:

1. The Commission has before it for consideration the above-captioned application by Weigel Broadcasting Co. ("Weigel") for a construction permit to modify the authorized facilities of WDJT-TV, Channel 58 (CBS), Milwaukee, Wisconsin. Weigel is also the licensee of WCIU-TV, Channel 26 (IND) , , the Grade B contour of which overlaps that of WDJT-TV. Weigel currently operates these stations pursuant to a permanent waiver of the Commission©s rule, Section 73.3555(b), which generally prohibits common ownership and/or control of stations with overlapping Grade B contours.1 Because the proposed modification

©In 1989, after the permittee of WDJT-TV declared bankruptcy, Weigel acquired the construction permit and proposed to increase the station©s coverage area by re-orienting the directional antenna. Because the proposed modification would result in a Grade B overlap with commonly-owned WCIU-TV, Chicago, Illinois, Weigel requested a waiver of Section 733555(b), the Commission©s duopoly rule. The overlap area comprised 4.4% of WDJT-TV©s Grade B area and 5.8% of its Grade B population and 2.0% of WCIU-TV©s Grade B area and 12% of its Grade B population. The Commission concluded that although the overlap was not de minimis. it was not so large as to require a finding that the two stations served substantially the same area. Based on the separateness and

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would enlarge WDJT-TV©s service contour and increase the existing Grade B contour overlap with WCIU-TV, Weigel requested a further permanent waiver of the Commission©s duopoly rule, Section 73.3555(b). The proposed modification has been opposed by the Hearst Corporation ("Hearst"), licensee of WISN-TV, Channel 12 (ABC), Milwaukee, Wisconsin, and WLTQ-FM, Milwaukee, Wisconsin, and by Susan Z. Flint and a group of local residents.2

Duopoly Waiver

2. Waiver Request Weigel asserts that it has filed this application because recent affiliation shifts in the Milwaukee market have left WDJT-TV, a station with a relatively small service area, as the sole Milwaukee CBS affiliate. Weigel proposes to enlarge WDJT-TV©s service area to a level comparable with the former Milwaukee CBS affiliate. In support of its request for waiver of Section 73.3S55(b), the Commission©s duopoly rule, Weigel has submitted an engineering statement indicating that the predicted Grade B service contour overlap area encompasses 1,155 square kilometers and 376,153 people. This represents 8.97% of the area and 16.12% of the population within WDJT-TV©s proposed Grade B service contour and 7.95% of the area and 4.60% of the population within WCIU-TV©s Grade B service contour. While the instant modification would increase the percentage of Grade B contour overlap, it would not cause any Grade A contour overlap. Weigel maintains that while this overlap area is not de minimis. it too is not so large as to require a finding that the stations "serve substantially the same area" and is within the range of past Commission waiver decisions.

3. Weigel contends that the markets are separate and distinct and that there will be no adverse impact on the diversity of voices in the overlap area. According to Weigel, WCIU-TV is licensed to Chicago, Illinois, the nation©s 3rd largest market and WDJT-TV is licensed to Milwaukee Wisconsin, the nation©s 29th largest market In addition to WCIU-TV and the proposed WDJT- TV, 22 other stations serve all or part of the overlap area. Ten commercial stations and two non commercial stations serve 100% of the overlap area and four more commercial stations serve 98% of the area. Weigel pledges that its stations will continue to be separately programmed. WCIU- TV will continue broadcasting a live, locally-produced business news program for seven hours distinctness of the Chicago and Milwaukee markets, the multiplicity of diverse signals serving the overlap area and WDJT-TV©s financial difficulties, the Commission granted a duopoly waiver. Weieel Broadcasting Co.. 4 FCC Red 6200 (1989).

2 After Weigel filed its modification application on January 11, 1995, Hearst filed suit in state court to enjoin the construction of the proposed transmitter tower, based on property rights emanating from Hearst©s own transmitter tower located approximately 200 feet away. Hearst Corp. v. Weigel Broadcasting Co. and Milwaukee Cry.. 95 CV 1266 (Filed February 14,199.5). After an evidentiary hearing, the court, relying exclusively on property law, granted a permanent injunction blocking construction. Hearst filed a petition to deny the modification application on March 1, 1995. Weigel amended its modification application on June 20, 1995, to specify a transmitter site, approximately 560 feet from Hearst©s facility. Hearst filed a supplement opposing construction at the new site on August 18, 1995. Local residents filed objections to the modification application, as amended, on September 25, 1995 and October 23, 1995, and Weigel responded on January 11, 1996.

17203 Federal Communications Commission FCC 96-204 each weekday in addition to an assortment of religious, syndicated, commercial, foreign language and local "teen dance" programming. WDJT-TV will broadcast CBS network programming together with some syndicated programs. Although five syndicated programs, totaling hours per week, are currently aired on both stations, Weigel does not anticipate substantial duplication in the future. Program purchases are reviewed at the corporate level, but the stations currently employ separate programming staffs, and Weigel anticipates that this will continue.

4. Weigel contends that the proposed improvement to WDJT-TV©s facilities will not result in an undue concentration of economic power within the overlap area. Weigel pledges that the stations do not, and will not, sell advertising in the overlap area, nor engage in joint or combined advertising sales. Facing competition in highly competitive markets, Weigel characterizes itself as a non-dominant economic power by citing 1994 Nielson ratings indicating that, in the three counties that are partially within the proposed overlap area, WCIU-TV had 1% of the audience share in one county and less than 1% in the other two. Further, Weigel pledges that the stations will continue to be run as separate and distinct business entities. Although accounting functions are performed at the corporate level, the stations employ separate managerial, traffic and sales staffs and it is anticipated that this will continue.

5. Weigel asserts that public interest benefits outweigh the concerns raised by the extent of the overlap area. In December 1994, the Milwaukee CBS network affiliate station switched affiliations to the Fox Television Network and WDJT-TV then became the CBS affiliate in Milwaukee. However, due to WDJT-TV©s smaller coverage area, nearly 225,000 people lost Grade A service and approximately 561,129 people lost Grade B service from their local Milwaukee CBS affiliate. According to Weigel, WDJT-TV©s current Grade B contour does not reach a substantial portion of the Milwaukee DMA, and its current Grade A coverage does not even reach significant portions of the Milwaukee metro market. Weigel maintains that this proposed modification is necessary to return a local source of CBS programming to those viewers from whom it was withdrawn by the affiliation shift. Additionally, by allowing WDJT-TV to increase its service coverage area to a level comparable with the other local network affiliates, Weigel contends that WDJT-TV will be able to compete on a "level playing field" with the other Milwaukee network affiliate stations, which currently have Grade B service contours encompassing two to three times the area and between 800,000 and 1.2 million more people than WDJT-TV©s current coverage. Lastly, Weigel has indicated its intent to broadcast a new regularly scheduled, one-half hour long local Milwaukee news program each weekday to serve as a lead-in to the CBS Evening News. Weigel has also indicated the possibility of scheduling additional weekend or late-night local news programming.

6. Discussion In adopting the duopoly rule©s fixed standard of prohibiting overlap of Grade B service contours, the Commission also acknowledged the need for "flexibility" in that rule©s application, noting that waivers should be granted where rigid conformance to the rule would be "inappropriate." Multiple Ownership of Standard. FM and Television Broadcast Stations (Multiple Ownership^. 45 FCC 2d 1476 n.l, recon. granted in part. 3 RR 2d 1554 (1964). To that end, the Commission has developed a set of factors to be considered when evaluating an applicant©s request for waiver of the duopoly rule, including the extent of the overlap, the number

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of media voices available in the overlap area, the distinctness of the respective markets, the independence of the stations© operations, and the concentration of economic power resulting from the combination. See Iowa State University Broadcasting Corporation. 9 FCC Red 481, 487-88 (1993), aff d sub nom. lowans for WOI-TV. Inc. v. FCC. 50 F.3d 1096 (D.C. Cir. 1995); and H&C Communications. Inc.. 9 FCC Red 144, 146 (1993). After weighing the factors, the Commission considers any public interest benefits proposed by the applicant to determine whether, in light of the overlap, the benefits outweigh any detriment which may occur from grant of the waiver. See, e.g.. Iowa State University. 9 FCC Red at 487-88. As with any waiver, it will only be granted if the Commission concludes that the waiver is in the public interest. It is against this standard that we will evaluate Weigel©s waiver request.

7. Our past waiver cases have characterized deminimis as an overlap area representing less than 1% of both area and population of the Grade B contour of each station. Hubbard Broadcasting. 2 FCC Red 7374 (1987). Although the extent of the overlap in the instant case does not satisfy this strict standard, we find that the stations do not serve "substantially the same area." Although the overlap percentage is somewhat higher than in past waiver cases,3 we believe that the restoration of a network service to viewers in the Milwaukee market, on balance, weighs in favor of waiving the rule, especially where the large number of alternative media (22 other television stations serving all or part of the overlap area) suggests that viewers in the overlap area will continue to receive a diversity of voices. By permitting Weigel to enlarge the service area of WDJT-TV, the Commission is furthering its stated goal of increasing diversity by remedying a loss of local service resulting from developments in the business of national network television. This action returns a local source of network programming and locally produced news to approximately 560,000 people who previously lost Grade B service from their Milwaukee CBS affiliate, and also restores Grade A service to an additional 225,000 people. Moreover, unlike other duopoly cases which involve consolidating ownership of two separately owned stations, this action will increase the diversity of programming available within the overlap area without diminishing the number of separately owned stations. In addition, Weigel©s commitments to institute a new regularly-scheduled one-half hour Milwaukee local news program on WDJT-TV and to consider adding other local news programming, constitute public interest benefits which the Commission has found tilt the balance in favor of granting a duopoly waiver. See. H&C Communications. 9 FCC Red at 144, 145.

8. Nor do we find that grant of this waiver disserves the Commission©s objective of ensuring competition. As we earlier recognized in Weigel Broadcasting Co.. 4 FCC Red at 6201, Milwaukee and Chicago were separate and distinct markets, and continue to be so today. The proposed overlap area is also well-served by alternative media providing a continuing source of competition to WDJT-TV and WCIU-TV. Fourteen other commercial television stations serve virtually all of the proposed overlap area, with another four serving various portions of that area. Furthermore, Weigel has represented that the stations will continue operating independently by

3 See, e.g.. Act III Communications. FCC 95-508 (released January 16, 1996) (area overlap 10.9% and 11.5% and population overlap of 4.5% and 3.5%).

17205 Federal Communications Commission FCC 96-204 employing separate programming, traffic and sales staffs; refraining from selling advertising within the overlap area or from conducting joint or combined advertising sales; and avoiding substantial duplication of programming on the two stations. Under these circumstances and given the fact that WCIU-TV currently averages less than 1% of the market share in the well-served overlap area, it appears that the possibility of a concentration of economic power in the overlap area inconsistent with the public interest is minimal. See Act III Communications Holdings. L.P.. FCC 95-508 (released January 16, 1996) (non-dominant positions in the marketplace reduce concerns about impact to competition in the overlap area). In sum, we conclude that the public interest benefits realized from permitting Weigel to increase the service area of WDJT-TV, a station Weigel has operated since the 1989 duopoly waiver, outweigh any detrimental effects caused by the increased signal overlap.

Petition to Deny and Informal Objections

9. Because Weigel©s application proposes only a minor modification of WDJT-TV s facilities under Section 73.3572(a)(l) and 73.3580(a)(l) of the Commission©s rules, it is not subject to petitions to deny under Section 309(d) of the Communications Act and Section 73.3584(a) of the Commission©s rules. Therefore, Hearst©s petition to deny will be dismissed. Nevertheless, pursuant to Section 73.3587 of the Commission©s rules, we will, in our discretion, consider the pleadings as informal objections, along with the other informal objections directed to Weigel©s proposal, as amended.

10. Hearst has alleged that: the proposed facility would have a significant environmental impact and Weigel has failed to comply with applicable environmental regulations; Weigel lacks reasonable assurances of site availability and access due to the absence of zoning approval; and the proposed facility will cause signal interference to Hearst©s transmissions and may violate Hearst©s property rights. The local residents object on the basis that: the proposed facility will have a significant environmental impact; they had no knowledge of Weigel©s lease for the property; zoning approval for the facility and the access road is not likely; the proposed facility raises concerns of possible danger from falling ice; signal transmissions may interfere with radio reception; and Weigel has engaged in unethical conduct such as omitting information in filings to governmental bodies regarding the scope of the facility.

11. Environmental Concerns Hearst and the local residents contend that Weigel has failed to comply with the National Environmental Policy Act of 1969 ("NEPA"), as implemented by the Commission©s rules. They contend that the proposed facility will have a significant environmental effect and Weigel has failed to submit a proper environmental assessment ("EA") specifically required due to the proposed construction of an anchor point in a flood plain and the adverse effect on the wetlands and wildlife. Weigel maintains that an EA is not necessary because the project will not have a significant environmental effect, and with the exception of a sole anchor point located in a flood plain, the proposed facility is categorically excluded from environmental processing. In support of its conclusions, Weigel has submitted engineering reports, a copy of an U.S. Army Department of Corps of Engineers ("Army Corps of Engineers") authorization indicating that the anchor point will have only a minimal impact on the flood plain-

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wetland environment, and letters from the U.S. Department of the Interior Fish and Wildlife Service ("Interior Department") and the Wisconsin State Department of Natural Resources ("WDNR") indicating that the proposed facility will not impact any threatened or endangered species.

12. Section 1.1306 of the Commission©s rules, in pertinent part, states that all actions are categorically excluded from environmental processing and deemed not have a significant effect on the quality of the human environment except those that involve a site specification listed in Section 1.1307(a)(l)-(8). Alternatively, Section 1.1307(c) allows interested parties to submit a written petition setting forth in detail why a particular action otherwise categorically excluded will have a significant environmental impact. If the Commission finds that the action may have a significant environmental impact, it will require the applicant to prepare an EA and possibly undergo further environmental processing.

13. The fact that Weigel proposes to construct an anchor point in a protected flood plain is undisputed. Section 1.1307(a)(6) of the Commission©s rules, referring to Executive Order 11988, generally requires that an applicant proposing to construct a facility within a flood plain file an EA with the Commission. However, pursuant to Section 1.1311(e) of the Commission©s rules, which sets out the facts to be included in an EA, an applicant is specifically exempted from submitting an EA to the Commission "if another agency of the Federal Government has assumed responsibility for determining whether of [sic] the proposed facilities will have a significant effect on the quality of the human environment and, if it will, for invoking the environmental impact statement process." Weigel has submitted its proposal to the Army Corps of Engineers, which has determined the anchor point is eligible for a nationwide permit authorization based on the fact that it would only minimally impact the flood plain and/or wetland environment. 33 CFR § 330. l(b) and 33 CFR § 330, App. A, Nationwide Permit (25) and (33).4 Thus, because the Army Corps of Engineers, through the nationwide permit authorization process, has taken responsibility for determining the environmental effect to the wetlands of the proposed construction of an anchor point in the flood plain, Weigel is not required to submit an additional EA to the Commission. Additionally, the proposed construction must also be approved by the State of Wisconsin Department of Natural Resources which has issued a preliminary determination that the construction will not have a significant environmental impact either on the floodplain or on the shoreland-wetland district. Therefore, we find that the construction of an anchor point in the flood plain does not require further environmental processing by the Commission.

14. Hearst and the local residents contend that the proposed facility requires the Commission to conduct an environmental processing due to the potential adverse effect on wildlife. Additionally, Hearst contends that the proposed site is in an area that has been designated an "Environmental

4 Nationwide Permit 33 requires the applicant to submit a complete notification detailing the proposed construction and any potential adverse environmental effects. The examining engineer has the authority to impose terms or conditions or request mitigation should the environmental effects of the proposal be anything more than minimal. 33 CFR § 330, App. A, Nationwide Permit Condition (13). There were no such terms or conditions imposed in this case.

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Corridor" by the Southeastern Wisconsin Regional Planning Commission (SEWRPC). Weigel responds by explaining that SEWRPC©s action does not involve obtaining any additional permits or consents, it is merely an advisory activity to assist local governmental units in land use planning. In response to concerns regarding the effect on the tree community and wildlife, Weigel has submitted a letter from the Interior Department indicating that there will be no effect on any threatened or endangered species and no further action is required by the 1973 Endangered Species Act. A letter from the State of Wisconsin Department of Natural Resources Bureau of Endangered Resources reaches a similar conclusion. Section 1.1307(a)(l)-(3) of the Commission©s rules require EA©s to be submitted if the proposed facility is located in an officially designated wilderness area, officially designated wildlife preserve or if it may affect threatened or endangered species or their habitats as designated by the Interior Department. There has been no showing that an "Environmental Corridor" qualifies as an officially designated wilderness area or wildlife preserve for the purposes of Section 1.1307(1) and (2). Additionally, because the letter from the Interior Department specifically finds that no further action is required by the 1973 Endangered Species Act, we find that construction of the proposed facility does not qualify as an action which may have a significant environmental effect and is thus categorically excluded from environmental processing pursuant to Section 1.1306. In sum, based on the foregoing, we find that Weigel has complied with NEPA as implemented by the Commission©s rules and that this application is not subject to further environmental processing by the Commission.

15. Site Availability In response to the local residents© contentions that they had no knowledge of Weigel©s lease agreement, Weigel submits a copy of the lease whereby the County of Milwaukee, after public hearings by the Parks Committee and by the County Board of Supervisors, granted Weigel the right to construct and maintain a broadcast tower and related facilities in Lincoln Park. In response to Hearst©s contentions that Weigel does not have reasonable assurance of site availability due to local opposition and a determination from the City of Milwaukee Building Inspector that the proposed use requires a variance hearing, Weigel maintains that it fully intends to participate in the variance hearing and that it is entitled to a presumption that zoning approval will be granted. As noted in Artichoke Broadcasting Corp.. 10 FCC Red 12631, 12633 (released November 24, 1995), "The Commission traditionally has been reluctant to become embroiled in zoning matters, believing that such issues are within the province of, and best resolved by, local land use authorities. The Commission has generally assumed that applicants will be able to obtain local zoning and/or other requisite land use permits." Here, Hearst and the local residents have not supplied information sufficient to overcome the presumption that local zoning approval will be granted, even if a hearing is required. Therefore, the current lack -of zoning approval will not justify a denial of this application based on lack of site availability.

16. Site Access Hearst and the local residents contend that Weigel lacks reasonable assurance of access to the proposed site, because Hearst will not permit Weigel to use the currently existing access road and it is unlikely that the Milwaukee Metropolitan Sewer District (MMSD) will grant permission to construct an alternative access road. In response, Weigel states that it has not yet decided on a particular route and submits a letter from MMSD stating that no action has been

17208 Federal Communications Commission FCC 96-204 taken regarding construction of a new access road. According to Charles Vanda. 4 RR 2d 543, 545 (1965), notwithstanding current absence of an access road, access to a site will be presumed unless a petitioner can prove that there is no possibility of access. While Hearst can preclude Weigel from using the currently existing access road, there is no indication that the MMSD will not permit Weigel to construct an alternative route. Therefore, the current lack of an access road will not justify a denial of this application.

17. Hearst©s Other Concerns Hearst alleges that, due to the composition of the soil, Weigel©s proposed construction of anchor points may result in substratum deterioration possibly adversely affecting Heart©s existing anchor points. Hearst also contends that its Vice President for Engineering believes that the signal of the proposed facility will interfere with the transmission signal of WISN-TV and WLTQ-FM, originating 560 feet away. Weigel disputes Hearst©s signal interference contentions and maintains that the use of advanced engineering techniques and the fact that 100 feet separate the anchor points minimiyg the possibility of damage to Hearst©s facility. As for Hearst©s contentions of possible property damage, we note that Weigel is subject to the determination of a local court of competent jurisdiction should any such liability arise. As for the contentions of possible signal interference, Section 73.612 (TV) and Section 73.209(FM) of the Commission©s rules generally provide that existing licensees are protected from interference only by the minimum allotment, station separation, and maximum power and height restrictions. Further, pursuant to Section 73.685(g), the Commission does not require a UHF television station to include a showing of the expected effects on proximate FM radio station operation and only requires a showing of expected effects on proximate television station operation when the towers are located 200 or fewer feet apart and operate on channels within 20% of the same frequency. Because the towers will be approximately 560 feet apart and WISN-TV operates on Channel 12 while WDJT-TV operates on Channel 58, interference is unlikely and Weigel is not required to make any further showing regarding signal interference. Additionally, the Commission has a long standing "last in" policy, whereby the last party to construct on or near a site has the responsibility to eliminate any objectionable interference caused by its operations. Should objections arise, the Commission retains the right to notify the permittee to cease conducting equipment tests, pursuant to Section 73.1610, in accordance with the public interest Therefore, Hearst©s contentions regarding possible property damage and signal interference do not justify denial of the modification application.

18. Local Residents© Other Concerns Because the local residents believe that Hearst©s existing facility has caused problems with radio signal interference and ice falling from the tower, they are concerned that Weigel©s new facility, situated closer to a school and athletic fields, will exacerbate these problems. In response, Weigel has committed to take any corrective measures that may be necessary to minimize the area of signal interference. Pursuant to Section 73.685(d), the possible areas of "blanketing," the term used to describe signal interference in an area adjacent to a transmitter site, are unpredictable and, thus, the applicant for a construction permit assumes full responsibility for responding to any complaints and for taking any corrective action that may be necessary should blanketing occur. As for potential damage from falling ice, Weigel submits an engineering report indicating that the possibility of harm from falling ice is minimal and reports that Hearst has not filed any insurance claims for damages from operation of its tower

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since at least 1985. Weigel cites an independent study of the icing conditions of comparable towers which indicates that the vast majority of ice falls within 200 feet of the tower base and no ice damage was ever reported beyond 300 feet from the tower base. After calculating for the specific conditions likely at its proposed site, Weigel reports that, even in 60 mph winds, the highest recorded in that area in the past ten years, potentially harmful falling ice will not travel more than 350 feet from the tower base and the nearest road is 600 feet from the tower base. Additionally, Weigel reports that the wind primarily blows from the west northwest, causing the ice to fall hi a southeasterly direction toward the parkland and away from areas likely to be occupied. Weigel concludes that the potential harm from falling ice is minimal because it is unlikely that the parkland will be occupied during the wintry conditions associated with falling ice. Based on the foregoing representations, we conclude that concerns regarding the possibility of signal interference and falling ice will not justify a denial of this modification application.

19. The local residents also allege that, according to Weigel©s lease with the County of Milwaukee and things they "have heard," Weigel has omitted facts in representations to the FCC and other governmental units regarding the scope of the proposed facilities. Initially, we point out that Weigel has submitted a copy of the lease with its application and thus cannot be found to have omitted information therein to the Commission. As to allegations of misrepresentation to other governmental units, mere allegations will not be considered hi assessing the applicant©s character qualifications. The Commission will not take cognizance of such non-FCC misconduct prior to adjudication by another agency or court Policy Regarding Character Qualifications in Broadcast Licensing, 102 FCC 2d 1179, 1195-96 (1986).

20. We find that there has been no substantial or material question fact raised against the application. Accordingly, IT IS ORDERED that the petition to deny filed by the Hearst Corporation IS DISMISSED, and when considered as an informal objection IS DENIED; and the informal objections filed by Susan Z. Flint and the group of local residents ARE DENIED.

21. IT IS FURTHER ORDERED that Weigel©s request for permanent waiver of the duopoly rule, Section 73.3555(b), to permit an increased overlap area between WCIU-TV Chicago, IL and WDJT-TV Milwaukee, WI IS GRANTED.

22. IT IS FURTHER ORDERED that the application by Weigel Broadcasting, Co. for a construction permit to modify the authorized facilities of WDJT-TV (File No. BPCT-950111KL) IS GRANTED. FEDERAL COMMUNICATIONS COMMISSION

William F. Caton Acting Secretary

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