opportunity to better evaluate, and respond to, the complex economic analyses offered by many commenters in this proceeding. On June 13, 2005, the Commission received more than 2,000 pages of comments from multiple parties, many of which contained data submissions and economic analyses. Moreover, there was approximately a one-week delay before all of the comments were available on the Commission's Electronic Comment Filing System (ECFS). USTA claims that the delay in posting all of the initial comments on the Commission's website favors an extension and contends that this modest extension of time would not prejudice any party.

3. We hereby grant the motions for extensions of time. We agree with the Petitioners that, due to the voluminous and complex nature of the record, it may be difficult for the parties to review and respond to the comments by the July 12, 2005 deadline. In the interest of developing a thorough and complete record in this proceeding, the Bureau grants the Petitioners' requests, and hereby extends the reply comment deadline to July 29, 2005. This extension should allow parties adequate time to review and respond to the record in this proceeding. All other filing requirements set forth in the NPRM remain in effect.❜

4. Accordingly, IT IS ORDERED that, pursuant to the authority contained in sections 4(i), 4(j), and 303(r) of the Communications Act, as amended, 47 U.S.C: §§ 154(i), 154(j), and 303(r), and sections 0.91, 0.204(b), 0.291, 1.45, and 1.415 of the Commission's rules, 47 C.F.R. §§ 0.91, 0.204(b), 0.291, 1.45, and 1.415, the deadline for filing reply comments in response to the NPRM IS EXTENDED to July 29, 2005.

See Special Access NPRM, paras. 147-51.

FEDERAL COMMUNICATIONS COMMISSION

Somon fair

Tamara L. Preiss

Chief, Pricing Policy Division
Wireline Competition Bureau

NOTICE OF ACCEPTANCE FOR FILING OF TELEVISION BROADCAST STATION APPLICATION AND NOTICE OF PETITION TO DENY DEADLINE

CUT-OFF DATE: AUGUST 1, 2005

NOTICE is hereby given that the application listed in this notice is the result of a settlement agreement between competing applications pursuant to Section 73.3525 of the Commission's rules. The application is hereby accepted for filing. Since the application involves a settlement of applications that were mutually exclusive with other applications as of July 1, 1997, the application is considered to be "cut-off," and no application which would be in conflict with this application will be accepted for filing. See Implementation of Section 309(j) of the Communications Act – Competitive Bidding for Commercial Broadcast and Instructional Television Fixed Service Licenses, First Report and Order, MM Docket 97-234, 13 FCC Rcd 15920, 15945-46 (1998). Petitions to deny the application listed below must be on file with the Commission not later than the close of business August 1, 2005.

ERP (VIS): 3600 kW; HAAT: 278 METERS; COORDINATES: 29-37-47 82-34-25; ANTENNA: ERI Model ATW30H3-HSCI-29H, DIRECTIONAL

-FCC

1.

Released: June 29, 2005

MMK License LLC, licensee of television broadcast station WNKY (NBC, Ch. 40), Bowling Green, Kentucky (“WNKY"), has filed a petition for special relief seeking a waiver of the Commission's significantly viewed exception to the network nonduplication rules and the syndicated program exclusivity rules. No opposition to this petition has been received.

2. Upon the request of a local television station with exclusive rights to distribute a network or syndicated program, a cable operator generally may not carry a duplicating program broadcast by a distant station.' Under Section 76.92(f) of the Commission's rules, however, an otherwise distant station is exempt from the application of the network nonduplication rules if it is considered "significantly viewed" in a relevant community. In addition, pursuant to the Commission's cable television syndicated programming exclusivity rules, a cable system may not import duplicating syndicated programming that has been purchased by a local station on an exclusive basis. In both situations, the Commission's rules generally provide stations such protection within a station's 35-mile geographic zone. However, a local station may not exercise either right if an otherwise distant station is considered “significantly viewed" within the community served by the cable system. The significantly viewed exception to the

'See 47 C.F.R. §76.92; 47 C.F.R. §76.101.

2 47 C.F.R. §76.92(f); see 47 C.F.R. §§76.5(i) and 76.54.

'See 47 C.F.R. §76.101.

*The 35-mile geographic zone extends from the reference point of the community of license of the television station. See 47 C.F.R. §§73.658 and 76.53.

'See 47 C.F.R. §§76.92(f) and 76.106.

Commission's exclusivity rules is based on an otherwise distant station establishing that it receives a “significant" level of over-the-air viewership in a subject community. If this viewership level is met, the station is no longer considered distant for purposes of the application of the Commission's exclusivity rules because it has established that it can be received over the air in the subject communities.

3. In KCST-TV, Inc., the Commission held that in order to obtain a waiver of Section 76.92(f), petitioners would be required to demonstrate for two consecutive years that a station was no longer significantly viewed, based either on community-specific or system-specific noncable viewing data. Section 76.5(i) of the Commission's rules requires that for network stations to be considered significantly viewed, the survey results should exceed a 3 percent share of total viewing hours and a net weekly circulation of 25 percent, by at least one standard error.' For each year, the data must be the result of independent professional surveys taken during two one-week periods separated by at least thirty days, the viewing samples must be distributed proportionately among the relevant cable communities, and not more than one of the surveys may be taken between April and September of each year.' The Commission has found that this type of test is applicable as well for waivers of the syndicated exclusivity exemption.'

4. Station WNKY seeks a waiver of the significantly viewed exception to the Commission's network nonduplication and syndicated exclusivity rules so that it may enforce its rights to network nonduplication and syndicated exclusivity against Station WAVE-TV (NBC, Ch. 3), Louisville, Kentucky ("WAVE-TV").10 WAVE-TV is currently considered to be significantly viewed in Adair and Hart Counties, Kentucky, where the communities of Columbia and Horse Cave, Kentucky, are located.

5. In support of its petition, WNKY states that it would have network nonduplication and syndicated exclusivity rights for NBC programming in the Bowling Green, Kentucky designated market area ("DMA"), but is prevented from asserting those rights against WAVE-TV in the subject communities because WAVE-TV is considered to be significantly viewed in Adair and Hart Counties, where the communities are located." WNKY points out that WAVE-TV, which is licensed to Louisville, Kentucky, is part of the Louisville DMA." As a result, WNKY states that it would ordinarily have the right to assert its network nonduplication and syndicated exclusivity rights against WAVE-TV, except for the fact that the station has been considered significantly viewed. WNKY asserts, however, that WAVE-TV no longer meets the significantly viewed standard in the communities of Columbia and Horse Cave and, as proof, it submits the results of special, community-specific surveys conducted by Nielsen Media Research." WNKY states that Nielsen's surveys are averages of two four-week sweeps in each of

*103 FCC 2d 407 (1986).

747 C.F.R. §76.5(i)..

'See 47 C.F.R. §76.54(b).

'See Chambers Cable of Oregon, Inc., 5 FCC Rcd 5640 (1990).

1o Petition at 1.

"Petition at 1-2. WNKY states that WAVE-TV achieved its significantly viewed status by its inclusion in Appendix B to the Reconsideration of the Cable Television Report and Order, 36 FCC 2d 326, 378 (1992).

12Petition at 3.

13Id. at 3 and Exhibits 1 and 2. WNKY states that Nielsen's tabulation was based on noncable homes from all of the zip codes in the communities of Columbia and Horse Cave. We note that WNKY also submitted county(continued...)

two years and is consistent with the requirements set forth in Section 76.54(b) of the Commission's rules." The first year survey's audience estimates were based on May 2002/February 2003 data and the second year's estimates on the May 2003/February 2004 data." WNKY states that WAVE-TV's share of total viewing hours in noncable homes in Columbia and Horse Cave falls far short of the required significantly viewed minimums, within one standard error, as shown in the table below:

As a result, WNKY requests that the Commission grant its petition so that it can assert its network nonduplication and syndicated exclusivity rights in the subject communities.

6. With respect to the community of Columbia, we find that, as required by the Commission's rules, WNKY has provided two sets of community-specific survey results for each year surveyed. In the results obtained by Nielsen herein for the May 2002 and February 2004 survey periods, the reported results for WAVE-TV indicate a zero share of total viewing hours and no net weekly

(...continued from previous page)

wide survey information. However, for the purposes of demonstrating that a station no longer attains significantly viewed status, county data are irrelevant.

"47 C.F.R. §76.54(b).

"Petition at Exhibit 1. We note that, with respect to the community-based data provided, it is not clear from the information provided that the data are only from noncable homes. WNKY claims that the tables it submits are the results of Nielsen's special tabulation, however there is no Nielsen documentation. This may have been an oversight when WNKY reproduced the tables or the petitioner may have failed to reiterate the work “noncable” when referring to the special tabulation requested from Nielsen. However, upon request, WKNY's counsel confirmed that the sample source for the survey consisted of noncable TV households.

The survey dates of May 2002/February 2003 and May 2003/February 2004 meet the criteria set forth in the rules and KCST-TV that the two one-week surveys be separated by at least 30 days and that both surveys may not occur between April and September.