Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554
In the Matter of ) ) WJAG Incorporated, ) Docket No. ______) FM Broadcast Station KEXL, ) Pierce, NE Facility ID No. 170494 )
To: Office of the Secretary, Federal Communications Commission
Attn: Chief, Audio Division, Media Bureau
PETITION FOR WAIVER
WJAG Incorporated (“WJAG Inc.”), by its undersigned counsel and pursuant to Section
1.3 of the Commission’s rules,1 hereby respectfully requests waiver of the Commission’s
Newspaper-Broadcast Cross-Ownership rule (the “NBCO Rule”),2 as reinstated following the
Third Circuit’s September 2019 decision.3 Specifically, for the reasons stated herein, WJAG
Inc. requests that the FCC waive the NBCO Rule to permit the continued common ownership of
KEXL(FM), Pierce, Nebraska (Facility ID No. 170494) (“KEXL”) and The Norfolk Daily News.
As further detailed below, grant of WJAG Inc.’s requested waiver is warranted, and is in the
public interest.
1 47 C.F.R. § 1.3. 2 Id. at § 73.3555(d)(1)(ii) (“No party (including all parties under common control) may directly or indirectly own, operate, or control a daily newspaper and a full-power commercial broadcast station (AM, FM, or TV) if . . . The predicted or measured 1 mV/m contour of the FM station (computed in accordance with § 73.313) encompasses the entire community in which the newspaper is published . . . .” (emphasis added)). 3 Prometheus Radio Project v. FCC, 939 F.3d 567, 573 (3rd Cir. 2019) (“Prometheus IV”), cert. granted, 594 U.S. ---, Nos. 19-1231, 19-1241 (U.S., Oct. 2, 2020).
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BACKGROUND
The Huse Family holds direct attributable interests in The Norfolk Daily News and
KEXL, which both serve Norfolk, Nebraska.4 The Huse Family has provided the residents of
Norfolk, Nebraska with quality local news and information sources since the late 19th Century
beginning with acquisition of The Norfolk Daily News in 1888. Five generations of the Huse
Family have now ran the newspaper. In the early 1920s, Huse Family experimented with radio
by commencing operations with WJAG(AM), Norfolk, Nebraska (Facility ID No. 73121)
(“WJAG”) – long before the FCC’s inception in 1934. In 1971, WJAG Inc. commenced
operations with a second radio station, KQKX(FM) (formerly KEXL), Norfolk, Nebraska
(Facility ID No. 73122) (“KQKX”). Finally, in 2009, WJAG Inc. was granted a license for
KEXL.5
KEXL’s service contour currently encompasses the entirety of Norfolk, Nebraska, which
is The Norfolk Daily News’ community of publication.6 When KEXL’s license was granted in
2009, however, KEXL was constructed so as not to encompass Norfolk, Nebraska with the
entirety of its predicted service contour in compliance with the NBCO Rule.7 In reliance on the
Commission’s repeal of the NBCO Rule in November 2017,8 WJAG Inc. made a series of
modifications to KEXL’s facilities, thereby significantly expanding KEXL’s service area. First,
4 See LMS File No. 0004992103 (2019 Biennial Ownership Report). 5 See CDBS File No. BLH-20091030AFQ. 6 A waiver of the NBCO Rule is not being filed by WJAG Inc. with respect to WJAG and KQKX because those stations were grandfathered in when the NBCO Rule went into effect in 1975. 7 See CDBS File Nos. BLH-20091030AFQ & BMPH-20091015ABB. 8 2014 Quadrennial Regulatory Review, Order on Reconsideration and Notice of Proposed Rulemaking, 32 FCC Rcd. 9802, 9806, ¶ 8 (2017) (“NBCO Rule Repeal Order”).
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on March 3, 2018, WJAG Inc. filed a modification of license application to increase KEXL’s
power to the maximum authorized for an FM Class 3 station.9 The FCC granted that application
on April 20, 2018.10 Then, on June 6, 2018, WJAG Inc. filed a construction permit application
for KEXL to upgrade KEXL to a Class C2 station, and to increase KEXL’s power using a non-
directional antenna.11 That application was granted on August 7, 2018.12 Finally, WJAG Inc.
filed a license to cover application for KEXL’s new Class C2 facilities, which was granted by the
Commission on February 1, 2019.13 The result of these modifications to KEXL’s facilities was
that KEXL’s service area was expanded to encompass the entirety of the Norfolk, Nebraska
community.
Therefore, following the Third Circuit’s reinstatement of the NBCO Rule in Prometheus
IV, WJAG Inc. is currently not in compliance with the NBCO Rule because KEXL’s predicted service contour now encompasses the entirety of Norfolk, Nebraska – which is the community of publication for the commonly-owned newspaper, The Norfolk Daily News.
DISCUSSION
The FCC may grant a waiver for good cause shown.14 A waiver is appropriate where the particular facts make strict compliance inconsistent with the public interest.15 In addition, the
FCC may take into account considerations of hardship, equity, or more effective implementation
9 CDBS File No. BMLH-20180305AAN. 10 Id. 11 CDBS File No. BPH-20180606AAG. 12 Id. 13 CDBS File No. BLH-20190102AAZ. 14 47 C.F.R. § 1.3. 15 Ne. Cellular Tel. Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990).
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of overall policy on an individual basis.16 Such a waiver is appropriate if special circumstances
warrant a deviation from the general rule, and such deviation will serve the public interest.17
Specifically, waiver of the NBCO Rule “will be granted so long as the applicants can
demonstrate that viewpoint diversity will not be unduly harmed as a result of the proposed
combination.”18 As demonstrated below, these requirements are met for WJAG Inc.’s requested
waiver.
A. WJAG Inc. Relied Upon the FCC’s Repeal of the NBCO Rule in Expanding KEXL’s Service Area
WJAG Inc. filed a series of applications to expand KEXL’s service area following the
Commission’s repeal of the NBCO Rule in November 2017. Following the reinstatement of the
NBCO Rule by the Third Circuit’s September 2019 decision in Prometheus IV, however, WJAG
Inc. now finds itself in violation of the reinstated rule. To date, the Commission has not issued
any guidance on what broadcast licensees finding themselves in this situation are to do following
the Prometheus IV decision. Accordingly, as the result of the Third Circuit’s recent
reinstatement of the NBCO Rule, WJAG Inc. is now relying upon the FCC’s earlier guidance in
the Second Report and Order to request a waiver of the NBCO Rule.
In the Second Report and Order, the Commission stated that it would grandfather “to the
extent required, any existing newspaper/broadcast combinations that no longer comply with the
NBCO Rule . . . to the extent grandfathering/permanent waivers are still necessary to permit
16 WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir. 1969), cert. denied, 409 U.S. 1027 (1972); Ne. Cellular, 897 F.2d at 1166. 17 Ne. Cellular, 897 F.2d at 1166. 18 2014 Quadrennial Regulatory Review, Second Report and Order, 31 FCC Rcd. 9864, 9940, ¶ 188 (2016) (“Second Report and Order”).
4 common ownership.”19 Specifically, the Commission grandfathered existing newspaper/ broadcast combinations which no longer complied with the NBCO Rule due to the FCC’s modifications of that rule.20 Essentially, the FCC permitted the continued existence of previously-compliant newspaper/broadcast combinations despite changes in the NBCO Rule which made those combinations non-complaint under the revised rule.
Similarly here, WJAG Inc. relied upon the Commission’s repeal of the NBCO Rule to expand KEXL’s service contour to encompass all of Norfolk, Nebraska to create a lawful newspaper/broadcast combination within that community. Following the Third Circuit’s reinstatement of the NBCO Rule in Prometheus IV, however, WJAG Inc. now finds itself non- compliant with the reinstated rule through no fault of its own. The Commission should grant
WJAG Inc. similar grandfathered treatment as it did for broadcasters in the Second Report and
Order because WJAG Inc.’s newspaper/broadcast combination was lawful at the time it was created.
B. The NBCO Rule is Outdated
As recognized by the FCC, the NBCO Rule is outdated and does not reflect the realities of the current marketplace. The Commission adopted the NBCO Rule in 1975 – a time in which broadcasters and newspapers were the dominant media sources.21 Since that time, however, “the media marketplace has seen an explosion in the number and variety of sources of local news and
19 Second Report and Order, 31 FCC Rcd. at 9941, ¶ 191 (emphasis added) (citing 2014 Quadrennial Regulatory Review, Further Notice of Proposed Rulemaking and Report and Order, 29 FCC Rcd. 4371, 4445, ¶ 166 n.481 (2014) (“FNPRM”)). 20 Id. See also FNRPM, 29 FCC Rcd. at 4444, ¶ 166 (proposing to permit the grandfathering of existing newspaper/television combinations rendered noncompliant due to a transition from analog to digital television contours for purposes of the NBCO Rule). 21 See NBCO Rule Repeal Order, 32 FCC Rcd. at 9811, ¶¶ 16-17.
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information . . . .”22 The diversification of the media marketplace is largely the result of the
“‘the Internet [] transform[ing] the American people’s consumption of news and information.’”23
The media marketplace of the Twenty-First Century is now a “‘nuanced ecosystem of community news and information,’ in which ‘Americans turn to a wide range of platforms to get local news and information’” – far beyond the traditional newspaper and broadcast news outlets.24 Thus, the continued application of the NBCO Rule to the media marketplace is no
longer in the public interest.
As the FCC noted in the NBCO Rule Repeal Order, the “‘newspaper industry is now in crisis’” as a result of Americans’ shift in media and news consumption to online sources.25 The
Commission observed that the NBCO Rule “does not promote localism and actually may hinder
it by preventing local news outlets from achieving efficiencies by combining resources needed to
gather, report, and disseminate local news and information.”26 Indeed, the Commission found
that repealing the NBCO Rule – and thereby permitting newspaper/broadcast combinations –
would actually “increase[e] the quantity and quality of local news and information they provide
in the local markets.”27 Accordingly, improvement in the quantity and quality of local news
22 Id. at 9811, ¶ 17. 23 Id. at 9813, ¶ 20 (citing 31 FCC Rcd. at 10049 (Dissenting Statement of then- Commissioner Pai)). 24 Id. (quoting Pew Research Center and Knight Foundation, How People Learn About Their Local Community 1 (Sept. 26, 2011), http://www.pewinternet.org/2011/09/26/how- peoplelearn-about-their-local-community). 25 See NBCO Rule Repeal Order, 32 FCC Rcd. at 9815, ¶ 24 (quoting Second Report and Order, 31 FCC Rcd. at 10046 (Dissenting Statement of then-Commissioner Pai)). 26 Id. at 9816, ¶ 26 (citations omitted). 27 Id.
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would be enabled “by creating efficiencies through the sharing of expertise, resources, and
capital” between broadcast stations and newspapers.28
Permitting WJAG Inc.’s combined ownership of KEXL and The Norfolk Daily News is a
prime example of why the Commission repealed the NBCO Rule. Common ownership of KEXL
and The Norfolk Daily News enables WJAG Inc. to combine and share newsgathering resources,
thereby providing he Norfolk, Nebraska community members with quality local news and
information services. Furthermore, the combination of a radio station and a newspaper enables
WJAG Inc. to provide this quality local news and information services to community members
through a wider variety of mediums – on air, in print, and online through the newspaper’s
website, https://norfolkdailynews.com/. Without the collaboration and cost-sharing realized by
this radio/newspaper combination, the members of the Norfolk, Nebraska community would be
deprived of an essential local news and information service.
C. Prometheus IV is Currently Pending Before the U.S. Supreme Court
The U.S. Supreme Court’s recent grant of the petitions for certiorari to review the Third
Circuit’s decision in Prometheus IV demonstrates further grounds for waiver of the NBCO
Rule.29 As observed by Fox Corp. in its recent Request for Permanent Waiver of the NBCO
Rule, “the Court’s action shines a light on the Third Circuit’s problematic decision to resurrect
the NBCO Rule” despite the fact that “no party to Prometheus IV contends [that doing so] is in
the public interest . . . .”30 On December 18, 2020, the Commission granted Fox Corp.’s waiver
28 Id. at 9818, ¶ 30 (citing Second Report and Order, 31 FCC Rcd. at 9926-28, ¶¶ 160-61). 29 See FCC v. Prometheus Radio Project, No. 19-1231 (U.S., cert. granted Oct. 2, 2020). 30 Request for Permanent Waiver of Newspaper-Broadcast Cross-Ownership Rule of Fox Corp. at 4-6, MB Docket No. 20-378 (Oct. 5, 2020).
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request noting that since “the Third Circuit did not question, nor did any party challenge . . . the
Commission’s 2017 finding that the NCBO [sic] was unnecessary to promote competition and
viewpoint diversity,” it was “appropriate to maintain the status quo . . . pending the decision of
the U.S. Supreme Court and any subsequent Commission consideration of whether the NBCO
rule remains in the public interest . . . .”31 Accordingly, for similar reasons, the FCC should
grant WJAG Inc. a waiver of the NBCO Rule until the Supreme Court has issued its decision.
D. Viewpoint Diversity will not be Unduly Harmed
Viewpoint diversity in Norfolk, Nebraska has not been, nor will be, unduly harmed by
WJAG Inc.’s common ownership of KEXL and The Norfolk Daily News following the
Commission’s repeal of the NBCO Rule. The Norfolk, Nebraska community members’ access
to a wide variety of news and information sources is not hindered by WJAG Inc.’s combined
ownership of the radio station and the newspaper.
In addition to KEXL, WJAG Inc. is the licensee of WJAG and KQKX. Neither KEXL,
WJAG, nor KQKX are presently listed as “home” to any BIA/Nielsen radio market.32 There are
a total of 26 stations within the market created by KEXL, WJAG, and KQKX’s overlapping
contours.33 These 26 stations are owned by 11 entities in addition WJAG Inc., for a total number
of 12 separate radio voices in the market.34 The formats of the stations in the market range from
News/Talk to Adult Contemporary – with equal varied editorial viewpoints.35
31 Fox Corp. Request for Permanent Waiver of Newspaper-Broadcast Cross-Ownership Rule, MB Docket No. 20-378, Order, DA 20-1511, at ¶¶ 1 & 11 (rel. Dec. 18, 2020). 32 See CDBS File No. BPH-20180606AAG, Ex.5, Radio Market Analysis. A copy of the analysis is attached hereto as Attachment A. 33 Id. 34 See Radio Station Ownership, attached hereto as Attachment B. 35 Id.
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Furthermore, there are 7 newspapers located within KEXL’s service area. In addition to
The Norfolk Daily News, market is also served by the Pierce County Leader, the Cedar County
News, the Antelope County News, the Neligh News & Leader, the Plainview News, and the
Wayne Herald. These newspapers represent 6 additional voices in the market. In addition to
print circulation, each of these newspapers serves the market through their websites: the Pierce
County Leader – https://www.piercecountyleader.com/nebraska-news/; the Cedar County News
– https://www.hartington.net/; the Neligh News & Leader –
https://www.antelopecountynews.com/; the Plainview News –
https://www.theplainviewnews.com/; and the Wayne Herald – http://www.mywaynenews.com/.
Still further viewpoints in the area are represented by local television stations. KEXL’s
community of license, Norfolk, Nebraska, is located within the Sioux City, Iowa Designated
Market Area (“DMA”), which is comprised of 6 full-power television stations and 1 low-power
television station serving approximately 160,911 households.36 These television stations
represent 5 additional voices in the market. Through this programming, the television stations
provide multiple viewpoints with regards to issues and events important to members of the
Norfolk, Nebraska community.
Finally, many households in the market subscribe to either cable or satellite services. The
Sioux City, Iowa DMA is served by 5 cable television providers serving approximately 43,370
households.37 These cable television providers include: Cable One, Cedavision, Eagle
36 Sioux City, TRUCKADS.COM, https://www.truckads.com/Designated-Market/Sioux- City.htm (last visited Dec. 8, 2020). See also Television Ownership Chart, attached hereto as Attachment C. 37 See 86 WARREN COMMUNICATIONS NEWS, TELEVISION & CABLE FACTBOOK, D-263, D- 461, D-465, D-466, D-470, D-473, D-474, D-480, and D-669 (Paul L. Warren & Daniel Y. Warren, 2018). See also Cable Television Ownership Chart, attached hereto as Attachment D.
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Communications, American Broadband, and MIDCO.38 The Sioux City, Iowa DMA is also served by national satellite television providers DIRECTV and the DISH Network. These cable and satellite television providers represent 7 additional viewpoints the market. Each of these providers offer their subscribers with scores of different channels of widely varied programming
– each of which adds its own voice to the market.
Therefore, there is a diverse array of media viewpoints in KEXL’s service area enabled by a wide variety of radio, television, newspaper, and cable/satellite television outlets – of which
WJAG Inc. plays a small, but nevertheless, important role. Accordingly, WJAG Inc.’s combined ownership of KEXL and The Norfolk Daily News does not unduly burden viewpoint diversity in the Norfolk, Nebraska community.
CONCLUSION
For the foregoing reasons, WJAG Inc. respectfully requests that the Commission grant the requested waiver, thereby permitting its common ownership of KEXL and The Norfolk Daily
News.
Respectfully submitted,
/s/ Keenan P. Adamchak Keenan P. Adamchak, Esq. Kristen A. Corra, Esq. Fletcher, Heald & Hildreth, PLC 1300 N. 17th Street, Suite 1100 Arlington, VA 22209 Tel: (703) 812-0400 Fax: (703) 812-0486 [email protected] [email protected]
Counsel for WJAG Incorporated Date: December 21, 2020
38 See Cable Television Ownership Chart, attached hereto as Attachment D.
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Attachment A
Radio Market Analysis (CDBS File No. BPH-20180606AAG)
Attachment B
Radio Station Ownership
COMMUNITY OF STATION SERVICE STATE FACILITY ID LICENSEE FORMAT LICENSE KEXL FM Pierce NE 170494 WJAG Incorporated Light Rock KQKX FM Norfolk NE 73122 WJAG Incorporated Country WJAG AM Norfolk NE 73121 WJAG Incorporated News/Talk/Sports KOLB FM Hartington NE 173307 VSS Catholic Communications, Inc. Religion KXNE-FM FM Norfolk NE 47967 Nebraska Educational Telecommunications Commission Classical/News KGKD FM Columbus NE 172512 The Praise Network, Inc. Christian KPNO FM Norfolk NE 66272 The Praise Network, Inc. Christian KVLD FM Norfolk NE 174372 Educational Media Foundation Christian Contemporary KWSC FM Wayne NE 71191 Wayne State College Modern Rock KUSO FM Albion NE 82844 Flood Communications, L.L.C. (Michael J. Flood) Country KKOT FM Columbus NE 28149 Alpha 3E Licensee LLC Classic Hits KDAM FM Hartington NE 183348 Riverfront Broadcasting LLC Adult Contemporary KNEN FM Norfolk NE 9954 Red Beacon Communications, LLC (Michael J. Flood Rock KZEN FM Central City NE 50733 Alpha 3E Licensee LLC Country KLIR FM Columbus NE 26627 Alpha 3E Licensee LLC Adult Contemporary KTCH FM Emerson NE 35659 Wayne Radio Works LLC Country KGRD FM Orchard NE 66274 The Praise Network, Inc. Christian KTIC-FM FM West Point NE 33881 Nebraska Rural Radio Association Country KKYA FM Yankton SD 60863 Riverfront Broadcasting LLC Country WNAX-FM FM Yankton SD 57839 Saga Communications of South Dakota, LLC Country KTIC AM West Point NE 33880 Nebraska Rural Radio Association Country KJSK AM Columbus NE 26628 Alpha 3E Licensee LLC News/Talk/Sports KTTT AM Columbus NE 28148 Alpha 3E Licensee LLC Country/Polka KCTY AM Wayne NE 35658 Wayne Radio Works LLC Classic Hits WNAX AM Yankton SD 57846 Saga Communications of South Dakota, LLC News/Talk
Attachment C
Television Station Ownership
COMMUNITY OF STATION SERVICE STATE FACILITY ID LICENSEE LICENSE
KCAU-TV DT Sioux City IA 11265 Nexstar Broadcasting, Inc. KMEG DT Sioux City IA 39665 WAITT Broadcasting, Inc. (Sinclair Broadcast Group, Inc.) KPTH DT Sioux City IA 77451 KPTH Licensee, LLC (Sinclair Broadcast Group, Inc.) KTIV DT Sioux City IA 66170 KTIV License, LLC KBWF-LD LD Sioux City IA 181673 Flood Communications of Omaha, LLC (Michael J. Flood) KSIN-TV DT Sioux City IA 29096 Iowa Public Broadcasting Board KXNE-TV DT Norfolk NE 47995 Nebraska Educational Telecommunications Commission
Attachment D
Cable Television Ownership
CABLE COMMUNITY OF LICENSE PROVIDERS OWNER SUBSCRIBERS TV Station Communities
Sioux City, IA Cable One Cable One Inc. 10,306
South Sioux City, NE Cable One Cable One Inc. 10,306
Norfolk, NE Cable One Cable One Inc. 6,441
Radio Station Communities
Hartington, NE Cedarvision Hartington Telephone Co. 35
Columbus, NE Eagle Communications Eagle Communications Inc. 215
Wayne, NE American Broadband American Broadband Communications Inc. 2,166
Albion, NE Eagle Communications Eagle Communications Inc. 295
Central City, NE Eagle Communications Eagle Communications Inc. 515
Norfolk, NE American Broadband American Broadband Communications Inc. 2,166
Norfolk, NE Cable One Cable One Inc. 6,441
Yankton, SD MIDCO Midcontinent Communications 4,484
TOTAL: 43,370
DECLARATION
I, W.H. Huse, hereby attest to the following:
1. I am the President and Treasurer of WJAG Incorporated.
2. I have personal knowledge of the facts set forth in the foregoing Petition for Waiver (“Petition”).
3. I have read the Petition, and the statements therein are truthful and correct to the best of my knowledge, information, and belief.
I hereby certify that to the best of my knowledge, information, and belief, under penalty of perjury, the foregoing statements are true and correct.
______W.H. Huse
Dated: December 21, 2020 CERTIFICATE OF SERVICE
I, Keenan P. Adamchak, of Fletcher, Heald & Hildreth, PLC, hereby certify that I caused a true copy of the foregoing Petition for Waiver to be sent this 21st day of December, 2020, via email, to the following individuals.
Albert Shuldiner Chief, Audio Division, Media Bureau Federal Communications Commission 45 L Street NE Washington, DC 20554 [email protected]
Michelle M. Carey Chief, Media Bureau Federal Communications Commission 45 L Street NE Washington, DC 20554 [email protected]
/s/ Keenan P. Adamchak Keenan P. Adamchak