How the FCC determines whether a television station from one market is “significantly viewed” in a distant community, vital to MVPD eligibility in a second market, is something Gray Television wants “streamlined.”
That’s according to an ex parte filing made by the publicly traded TV station owner via its outside counsel — former FCC Commissioner Robert McDowell.
But, what the company is asking is for the Commission to no longer consider ratings a factor, and instead rely only on signal contours for its determination process.
Notification of the latest request for FCC action came from McDowell, counsel to Gray at Cooley LLP, on May 25. It describes how on May 23 Gray Television SVP/Government Relations & Distribution Robert J. Folliard III and McDowell with Hannah Lepow, Legal Advisor for Media and Consumer Protection to Commissioner Geoffrey Starks.
Then, on May 25, McDowell and Folliard were joined by Cooley Special Counsel Henry Wendel for a meeting with Ben Arden, Chief of Staff and Legal Advisor to Commissioner Brendan Carr.
During both meetings, the parties discussed Gray’s proposal to modernize the Commission’s significantly viewed rules. And, the meetings come following the May 24 decision by Gray — and its Cooley legal counsel — to sue the FCC over its “apparent violation” of the Commission’s Top Four rule in Anchorage, Alaska.
With respect to what is MB Docket No. 20-73, the “matter of significantly viewed stations,” Gray described “the strong support among a diverse coalition of broadcasters” for its proposal. McDowell, writing for Gray, also argues that “the record makes clear that Gray’s proposal serves the public interest by promoting localism, diversity, and competition in the broadcast television marketplace.”
Lastly, Gray’s support for the rule “modernization” effort, tied to MB Docket No. 17-105, was given, as McDowell noted the Commission “has the clear statutory authority to adopt changes to its significantly viewed rules.”
Local television stations possess exclusive rights to distribute certain network or syndicated programs under FCC rules. Cable and satellite operators are generally prohibited from carrying duplicative programming from a station in a neighboring “distant” market. However, the FCC’s rules provide that a signal that otherwise would be considered “distant” is exempt the network non-duplication and syndicated exclusivity rules if it is “significantly viewed” in the relevant community. This is often used in rural areas where a station from a neighboring DMA has historical viewership or is otherwise considered widely consumed by the populace.
As Gray sees it, the FCC’s process to modify the significantly viewed list, or to waive the significantly viewed rules, “is outdated and burdensome for broadcasters and FCC staff,” and “reduces local service in small markets and short markets.”
This, Gray argues, undermines the public interest by depriving viewers from receiving content relevant to their communities.
The solution, as Gray sees it? The FCC should use its legal authority “to adopt a simple fix to this decades-old problem.”
Gray first addressed its concerns more than three years ago, and the FCC sought comment on the company’s proposal in an NPRM released in March 2020.
Calling the current process for updating the list of significantly viewed stations “expensive, inefficient, and slow,” Gray outlined it as follows:
• The FCC’s rules state that significant viewing “may be demonstrated by an independent professional audience survey of [over-the-air] television homes that covers at least two weekly periods separated by at least 30 days but no more than one of which shall be a week between the months of April and September.”
• A petitioner seeking to show that a station is no longer significantly viewed may submit the results from two sweep periods in each year.
• Nielsen February, May, July, and November “sweep periods” are used to determine viewership; Gray noted how “broadcasters are increasingly concerned about the accuracy of Nielsen’s over-the-air measurements.”
• Broadcasters often spend $30,000 to file a petition with the FCC and the extensive filing takes significant FCC staff time to review and process (on average more than a year to process each petition).
CONTOUR YES, RATINGS NO
Gray proposes that a petitioner should be able to demonstrate, using a Longley-Rice analysis, that the station’s signal reaches or does not reach 25% or more of the population in the target county.
Longley-Rice analyses are measurements of the predicted reach and strength of a station’s over-the-air signal. Viewership based on ratings would no longer be a factor — the key difference in what Gray is pitching to the Commission.
“Upon such a demonstration, the station would be added to the significantly viewed list or the FCC would waive the significantly viewed exception to the network nonduplication and syndicated exclusivity rules,” Gray says.
