DA 95-1313 Federal Communications Commission Record 10 FCC Red No. 13 tains that KNBC-TV is exempt from any deletion requests Before the made by local NBC affiliates on cable systems there, pursu Federal Communications Commission ant to that provision of the rules which exempts signifi Washington, D.C. 20554 cantly viewed signals from being deleted.2 TWC asserts that Arbitron©s reassignment of the City of Tehachapi to Kern County West in the Bakersfield ADI from Kern County In re: East in the Los Angeles ADI is irrelevant as to KNBC-TV©s significantly viewed status in Tehachapi. TWC clams that Time Warner Cable CSR-4131 grant of KGET©s network nonduplication request would effectively delete KNBC-TV from the Commissi -s©s list of Tehachapi, California CA 1454 significantly viewed signals for Kern East, without follow ing the procedures delineated in the Commission©s prior Network Nonduplication decision in KCST-TV, Inc.3 It asks that the Commission Petition for Declaratory Ruling note that KGET is not claiming that KNBC-TV is no longer significantly viewed in Tehachapi, but merely that the community is now considered by Arbitron to be part of MEMORANDUM OPINION AND ORDER Kern County West. Therefore, TWC requests that the Com mission issue a ruling, that KGET is not entitled to net Adopted: June 9,1995; Released: June 22,1995 work nonduplication protection against KNBC-TV on TWC©s system at Tehachapi. By the Cable Services Bureau: 4. In response, KGET notes that "Tehachapi was in cluded in Kern County East when the Commission adopted Appendix B to Section 76.54 . ." but it argues that the INTRODUCTION basis for denying network nonduplication to KGET no 1. Time Warner Cable, a division of Time Warner Enter longer exists since "Tehachapi is no longer a part of Kern tainment Company, L.P. ("TWC"), has filed the captioned County East . ." In support of this assertion, KGET "Petition For Declaratory Ruling" regarding application of submits a letter dated August 24, 1993 from Nielsen Ac the cable television network nonduplication rules to its count Executive David G. Avalos stating that "Bakersfield cable television system serving Tehachapi, California. is listed as the designated market area for Tehachapi."4 Ac KGET TV, Inc., licensee of Television Broadcast Station cording to KGET, therefore, "... the cable system serving KGET (NBC, Channel 17), Bakersfield California, filed an Tehachapi must accord network nonduplication protection opposition. to KGET based upon Tehachapi©s current county and ADI designation, not its prior designation." PARTIES© ARGUMENTS 2. On June 3, 1993, KGET requested network DISCUSSION nonduplication protection from TWC against any NBC 5. The crux of the issue before us is whether KGET is affiliate outside the Bakersfield ADI, including Station correct in its belief, asserted in its request for KNBC-TV (NBC, Channel 4), Los Angeles, California, stat nonduplication protection, that Arbitron©s 1991 ing that "Tehachapi is located in Kern County West, which reassignment of the City of Tehachapi, California to Kern is part of the Bakersfield ADI." A letter dated August 30, County West or to the Bakersfield ADI invalidates the 1993 to the President of TWC, Bill Grinstead. from an Commission©s finding, incorporated into Section 76.54(a) Arbitron Account Executive, George E. Brady, stated that of the rules, that KNBC is significantly viewed in the "Tahachapi was added to the Bakersfield ADI beginning western portion of Kern County, California, including with the November 1991 report. * * * * From the Novem Tehachapi. KGET©s belief is unfounded. The significantly ber survey up through the current and future surveys, it viewed status of a television station is not determined by will be included in the Bakersfield ADI." the application of Arbitron©s ADI assignments nor by 3. In its petition, TWC requests that the Commission changes subsequent to the survey from which a station©s issue a ruling that KGET is not entitled to network significantly view status was determined. Further, in this nonduplication protection on TWC©s system at Tehachapi instance, KGET has presented no showing, or even an against KNBC-TV. According to TWC, the system serving argument, that KNBC-TV is no longer significantly viewed Tehachapi has been transmitting KNBC-TV since 1964, off-air in Tehachapi. See, KCST-TV, Inc., supra. when the system first commenced operations. TWC notes 6. When the Commission adopted the significantly that Arbitron splits Kern County into Kern County East viewed exception to the network nonduplication rule, it and Kern County West. KNBC-TV, it is noted, was been explained that it had been concerned about deletion of found by the Commission to be "significantly viewed" in programs on stations that subscribers could receive off-air Kern County East, when it devised the list of significantly ever since it drafted its first network nonduplication rules viewed signals that is incorporated into the rules. 1 Because in 1963. The Commission added that it was attempting to TWC©s cable system was located in Kern County East for balance its traditional concern regarding economic impact purposes of the list of significantly viewed signals, it main to local broadcasters against its concern that stations be 1 Section 76.54(a) question are derived from the Nielsen organization. Nielsen 2 Section 76.92(0. information, however, is included as reflecting decisions analo 3 103 FCC 2d 407, 413 (1986). gous to those of Arbitron. 4 Neither the ADI boundaries nor the viewing surveys in 6668 10 FCC Red NO. 13 Federal Communications Commission Record DA 95-1313 available in full on cable systems serving communities where they are available off-air, and it concluded that in future waiver cases, "... the burden has now shifted to the broadcast licensee seeking nonduplication protection against a significantly viewed signal. A petitioning licensee will be expected to present persuasive justification .... this shifts the burden to the party possessing the licensee financial information."5 In this instance, KGET has pre sented no such financial data. The only assertion made by KGET is that, Arbitron decided in 1991 to move Tehachapi from the Los Angeles ADI (or Kern County East). According to Mr. Brady©s letter ". based upon station proposals to have it added to the Bakersfield ADI." Arbitron announced that it would consider Tehachapi as part of the Bakersfield ADI (or Kern West), rather than Kern County East. This decision in no way affects any of the Commission©s pre-existing policies or holdings, or its prior consideration of Tehachapi as part of Kern East for purposes of the application of the network nonduplication rules, and in particular the significantly viewed exception in Section 76.92(f) of the Rules. ORDERING CLAUSES 7. In view of the foregoing, we find that grant of TWC©s petition is in the public interest. 8. Accordingly, IT IS ORDERED, pursuant to Section 76.7 of the Commission©s Rules, that the petition for de claratory ruling (CSR-4131), filed October 13, 1993, by Time Warner Cable, a division of Time Warner Entertain ment Company, L.P. IS GRANTED. 9. This action is taken pursuant to authority delegated by Section 0.321 of the Commission©s Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau 5 Memorandum Opinion and Order in Docket No. 19995, 67 FCC 2d 1303 (1978), granting recon. of, 62 FCC 2d 99 (1976), stay granted in part, 68 FCC 2d 1308 (1978), recon. denied, 68 FCC 2d 1461 (1978), affd sub nom. Spartan Radiocasting Com pany v. FCC, 619 F. 2d 314 (4th Cir. 1980). 6669.