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In Re Application of ) ) WEIGEL BROADCASTING COMPANY ) ) ) File No Federal Communications Commission ___ FCC 96-204 Before the Federal Communications Commission Washington, D.C. 20554 In re Application of ) ) WEIGEL BROADCASTING COMPANY ) ) ) File No. BPCT-950111KL ) To Modify the Authorized Facilities ) of WDJT-TV, Milwaukee, Wisconsin ) 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) Chicago, Illinois, 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 duopoly rule, Section 73.3555(b), which generally prohibits common ownership and/or control of television 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 17202 Federal Communications Commission FCC 96-204 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 new 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 ten 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 17204 Federal Communications Commission FCC 96-204 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.
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