Before the

FEDERAL COMMUNICATIONS COMMISSION

Washington, DC 20554

In the Matter of )
)
Petition for Modification of Dayton, OH ) CSR-8824-A
Designated Market Area With Regard to ) MB Docket No. 13-201
Television Station WHIO-TV, Dayton, OH )
)

To: The Commission

OPPOSITION TO
APPLICATION FOR REVIEW

COX MEDIA GROUP

MIAMI VALLEY BROADCASTING
CORPORATION

Meredith S. Senter, Jr.

F. Scott Pippin
Lerman Senter PLLC
2000 K Street, NW, Suite 600
Washington, DC 20006
(202) 429-8970

January 14, 2014 Their Attorneys

 Table of Contents

Summary ............................................................................................................................ iii

I. Background ............................................................................................................. 2

II. Argument ................................................................................................................ 5

III. Conclusion ............................................................................................................ 12

ii
 Summary

This case involves television station WHIO, which is the CBS affiliate in the

Dayton, Ohio DMA, and communities in Auglaize County, Ohio that Nielsen most often

assigns to the Dayton DMA. For the 2013-14 television season, however, Nielsen

assigned Auglaize County to the Lima, Ohio DMA.

Auglaize County is an important part of WHIO’s market. WHIO is the highest

rated CBS affiliate in Auglaize County and often the highest rated station overall. Its

local news programs are the most watched in the county, in part because WHIO operates

a separate news bureau with reporters dedicated to covering the northern part of WHIO’s

market, including Auglaize County. Cable systems in Auglaize County have carried

WHIO for decades, no doubt due to the popularity of its programming with cable

subscribers.

In light of these facts, WHIO petitioned the Commission to modify its television

market, so that certain communities in Auglaize County would remain in WHIO’s market

for purposes of the cable carriage rules even in those odd years when Nielsen assigns the

county to the Lima DMA. The Media Bureau granted WHIO’s petition as to these

communities.

In the Application for Review, BCI contends, as it did before the Bureau, that

BCI’s stations provide better service to Auglaize County. BCI also argues that its CBS

affiliate should be protected from competition with WHIO, because the Auglaize County

communities are a “core” part of the Lima DMA, and that when BCI negotiated its CBS

affiliation agreement BCI expected Auglaize County to be part of its market.

iii
 BCI misses the point of a market modification petition. A market modification

petition is not a comparative hearing. It is not a zero sum game. In finding that the

Auglaize County Communities are part of WHIO’s market, the Commission did not

remove the communities from BCI’s market or alter the Lima DMA. The

Communications Act expressly provides, and the Decision found, that communities may

be part of more than one market. And the Bureau’s Decision made no judgment about

the service that BCI provides to the Auglaize County Communities.

BCI’s argument that it should be protected from “encroachment” by WHIO is

wrong for two reasons. First, the Commission does not protect television stations from

competition. Second, even if the Commission did protect stations from competition in

some circumstances, here that facts show that the Auglaize County communities have

never been a core part of the Lima DMA and that WHIO has always been the highest

ranked CBS affiliate in Auglaize County.

This case therefore stands for the unremarkable proposition that where

communities occasionally switch between two DMA assignments, cable subscribers in

those communities should be entitled to receive the station that they most often watch,

which in this case is WHIO.

iv
 Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, DC 20554

In the Matter of )
)
Petition for Modification of Dayton, OH ) CSR-8824-A
Designated Market Area With Regard to ) MB Docket No. 13-201
Television Station WHIO-TV, Dayton, OH )
)

To: The Commission

OPPOSITION TO
APPLICATION FOR REVIEW

Miami Valley Broadcasting Corporation, a local operating affiliate of Cox Media

Group (“CMG”) and licensee of WHIO-TV, Dayton, Ohio (“WHIO”), by its attorneys,

hereby opposes the Application for Review filed December 23, 2013 by Block

Communications, Inc., Lima Communications Corporation, and West Central Ohio

Broadcasting Corporation (collectively, “BCI”). BCI seeks review of the Media

Bureau’s decision (the “Decision”) to add certain cable television communities in

Auglaize County, Ohio (the “Auglaize County Communities”) to WHIO’s television

market pursuant to Section 76.59 of the Commission’s Rules.1

1
Petition for Modification of Dayton, OH Designated Market Area With Regard to Television Station
WHIO-TV, Dayton, OH, Memorandum Opinion and Order, DA 13-2250 (rel. Nov. 25, 2013) (the
“Petition”).
I. Background

By default, a television station’s market, for purposes of the cable carriage rules,

is its Nielsen Designated Market Area (“DMA”).2 Nielsen has assigned WHIO to the

Dayton, Ohio DMA. Therefore, by default, WHIO’s television market is the Dayton

DMA. This does not mean, however, that WHIO’s television market is strictly limited to

the geographic confines of the Dayton DMA. WHIO, like any other television station, is

entitled to seek a modification of its default market in order to reflect actual viewing

patterns. Section 614(h)(1)(C)(i) of the Communications Act, as amended, provides that

“the Commission may, with respect to a particular television broadcast station, include

additional communities [outside a station’s assigned DMA] within its television

market . . . .”3

In the Decision, the Media Bureau added additional communities currently

outside the Dayton DMA – the Auglaize County Communities – to WHIO’s television

market.4 This modification of WHIO’s television market did not, however, alter the

boundaries of the Dayton DMA or of neighboring DMAs, including the Lima, Ohio

DMA, where BCI operates. Rather, certain cable communities physically situated

outside the geographic boundaries of the Dayton DMA (including some in Auglaize

County, which Nielsen currently designates as part of the Lima DMA) were specified for

2
See 47 C.F.R. § 76.55(e)(2).
3
47 U.S.C. § 534(h)(1)(C)(i) (emphasis added).
4
Decision at ¶¶ 27-28. The Bureau also added certain cable communities in Wayne County, Indiana to
WHIO’s market, but denied CMG’s request to add certain cable communities in Allen County, Ohio to
WHIO’s market. No party has sought review of the Bureau’s decisions as to the Wayne County and Allen
County communities.

2
inclusion in WHIO’s television market, while remaining assigned to their Nielsen

DMAs.5

According to Nielsen, a DMA is “an exclusive geographic area of counties in

which the home market television stations hold a dominance of total hours viewed.”6 In

other words, Nielsen determines county DMA assignments by comparing the relative

viewership in each county of stations home to a DMA generally. Because Nielsen

assigns a county to a particular DMA based on the performance in that county of all

stations from a DMA generally, and not on the performance of any individual station, a

DMA designation may not accurately or completely reflect an individual station’s

television market. For this reason, Congress provided the corrective mechanism of

Section 614(h)(1)(C)(i) of the Communications Act, which allows the Commission to

include additional communities from outside a station’s DMA in the station’s television

market.7 Importantly, in considering such requests, “the Commission may determine that

particular communities are part of more than one television market.”8

For the 2013-14 television season, Nielsen assigned Auglaize County to the Lima

DMA. This means that Nielsen determined that, during the relevant measurement period,

more than 50% of television broadcast viewership in Auglaize County households was of
5
This is consistent with the statute and prior Commission decisions. See, e.g., Channel 33, Inc., 11 FCC
Rcd 3579, 3582 (CSB 1996) (“[F]or purposes of determining mandatory signal carriage obligations [of
WBFS-TV, Miami, located in the Miami-Fort Lauderdale ADI], we shall consider [8 communities in the
West Palm Beach-Fort Pierce-Vero Beach, Florida ADI] to be part of the Miami, Florida ADI with respect
to WBFS-TV, as well as within the West Palm Beach-Fort Pierce-Vero Beach, Florida ADI.”) (emphasis
added).

6
Nielsen Media Research’s Glossary of Media Terms, available at
http://www.nielsenmedia.com/glossary/terms/D/ (emphasis added).
7
47 U.S.C. § 534(h)(1)(C)(i); see also 47 C.F.R. § 76.59 (the Commission’s implementing regulations).
The Commission may also exclude communities from a station’s television market.
8
47 U.S.C. § 534(h)(1)(C)(i) (emphasis added).

3
Lima DMA television stations. In 38 prior years, however, including during each of the

three television seasons prior to 2013-14, Nielsen assigned Auglaize County to the

Dayton DMA.9 In those years, Nielsen determined that more than 50% of television

broadcast viewership in Auglaize County households was of Dayton television stations.

In sum, Nielsen’s assignment of Auglaize County to the Lima or Dayton DMA is based

on the relative performance in Auglaize County of all stations generally from the Dayton

and Lima DMAs.

Regardless of the group performance of the Dayton DMA stations in Auglaize

County, WHIO dominates television ratings in Auglaize County. In 2012, WHIO was

the most-watched station in Auglaize County across all dayparts, and particularly for local

news.10 While viewers in Auglaize County may, in certain measurement periods (such as

the one for 2013-14), watch all Lima DMA stations combined more than they watch all

Dayton DMA stations combined, they consistently watch WHIO in very high numbers.

Given this reality – that WHIO has the highest or second highest11 audience share

in Auglaize County, regardless of Nielsen’s occasional assignment of Auglaize County to

the Lima DMA – CMG petitioned the Commission to add the Auglaize County

Communities to WHIO’s market. The Bureau agreed with CMG’s reasoning and granted

the Petition as to the Auglaize County Communities.

9
Since 1967, Nielsen has assigned Auglaize County to the Dayton DMA 38 times and to the Lima DMA
eight times. See CMG’s Reply to Oppositions to Petition for Special Relief at Attachment A (“Reply
Attachment A”).
10
Id. at 7 (citing Petition at 28).
11
See Decision at n.75.

4
II. Argument

BCI’s challenge of the Decision rests, as it did before the Bureau, on a flawed

premise. BCI asserts that, in considering a market modification request, the Commission

compares one station to another and decides which is preferred.12 For example, BCI

argues that it has a better over-the-air signal in the Auglaize County Communities and

that it covers more local happenings.13 Even assuming these arguments are correct, they

are completely irrelevant. The issue is not whether BCI provides better or more service

to the Auglaize County Communities than WHIO. The issue is whether these

communities are part of WHIO’s market.

A market modification proceeding is decidedly not a comparative process.14

Between two television stations, there is no winner and loser. Section 614(h)(1)(C)(i) of

the Communications Act is clear that “particular communities [may be] part of more than

12
BCI, in fact, encourages the Commission to compare WHIO to all four of BCI’s Lima stations
combined, and not just to WOHL-CD 35.2 (BCI’s Lima CBS affiliate). See Application for Review at 7
(“The BCI Lima Stations provide superior signal coverage.”); id. (“[T]he BCI Lima stations [have] far
more extensive ties to local advertisers and community organizations.”); id. at 9 (“[T]he BCI Lima Stations
have been historically carried by cable systems in the Auglaize County communities.”); id. at 10 (“The BCI
Lima Stations provide comprehensive local service.”).
13
BCI also repeatedly claims that the Bureau “fail[ed] to consider” evidence submitted by BCI on such
issues. Application for Review at ii; see also id. at 2 (the Decision “was based on the near complete
disregard of evidence submitted by BCI.”) Yet the Decision addressed and, at times, endorsed BCI’s
evidence. See, e.g., Decision at ¶ 26 (“We agree with BCI that its stations serve the Auglaize and Allen
County communities with more programming than WHIO.”).
14
See Guy Gannett Communications, Inc., Order on Reconsideration, 15 FCC Rcd 10762, 10766 (CSB
2000) (“[T]he provision of locally-focused programming by other local stations does not negatively impact
[the petitioning station’s] modification request.”); Paxson Phoenix License, Inc., Memorandum Opinion
and Order, 13 FCC Rcd 8555, 8563 (CSB 1998) (“[O]ther station coverage when present is inapplicable as
a factor and does not weigh against a station seeking to add communities to its market.”); Smith Television
of New York, Inc., 11 FCC Rcd 6025, 6032 (CSB 1996) (“Although other stations provide local service to
the communities, this fact does not act as a bar to a station’s . . . claim.”) BCI claims that the Bureau
compared an out-of-market station’s programming to in-market stations in Channel 33, Inc., 11 FCC Rcd
3579 (CSB 1996). Application for Review at 18 n.43. It did not – at least not in the paragraphs (9 and 15)
cited by BCI.

5
one television market.”15 Therefore, the first three issues raised by BCI are red herrings.

The Bureau did not err by failing to compare WHIO to BCI’s stations under each of the

statutory factors. The question before the Bureau was not whether the Auglaize County

Communities are in BCI’s television market (the Lima DMA), but whether they also

should be a part of WHIO’s market. In making its determination, the Bureau correctly

refused BCI’s invitation to engage in a comparative process.

In making its decision that the Auglaize County Communities are part of WHIO’s

market, the Bureau did not remove the communities from any other station’s market. To

the contrary, the Decision adds the Auglaize County Communities to WHIO’s market

without affecting Nielsen’s assignment of Auglaize County to the Lima DMA for 2013-

14.16 Thus, BCI has not been harmed by the Decision.

To the extent that BCI’s stations were entitled to cable carriage in the Auglaize

County Communities prior to the Decision, they remain entitled to carriage after it. To

be sure, only one of BCI’s stations, WLIO, an NBC affiliate, is entitled to carriage,

because only WLIO is a full power television station. The other network affiliates owned

by BCI are broadcast on a low power television station and/or on digital multicasts.17

BCI must negotiate for carriage for these other affiliates, which it has done successfully

in the past. The Decision does not alter the status of these other affiliates or BCI’s right
15
47 U.S.C. § 534(h)(1)(C)(i); see also 47 C.F.R. § 76.59(a).
16
BCI asserts that CMG’s Petition “challenged Nielsen’s assignment of Auglaize . . . Count[y] to the Lima
DMA for the 2014 television year.” Application for Review at 6. This is entirely incorrect, and indicates a
failure to understand the basic purpose of the market modification process. Market modifications do not
alter a county’s assignment to particular DMA. Rather, they modify an individual station’s television
market. As the Bureau succinctly stated in the Decision, the purpose of a market modification petition “is
to determine a station’s market based on an analysis of certain statutory and other factors, a process distinct
from that which Nielsen performs to determine its DMA assignments.” Decision at ¶ 17 (emphasis added).
17
BCI owns all four network affiliates – NBC, FOX, ABC and CBS – in the Lima DMA. Application for
Review at 5.

6
to negotiate carriage of them. In sum, the status quo has been maintained: WHIO will

continue to be available in the Auglaize County Communities without encroaching on

BCI’s operations or BCI’s right to negotiate carriage of its stations in Auglaize County.

Still, BCI contends that the Decision upsets the “economic expectations”

underlying its affiliation agreement with CBS and gives WHIO rights in communities

that are “core” to the Lima market.18 The cases cited by BCI in support of this argument

are all Bureau decisions. WHIO is not aware of any decision by the Commission that

adopts or endorses the protectionist policies advocated by BCI. To the contrary, in one

Commission decision where the “economic expectations” argument was raised, the

Commission stated that “[a]lthough the must carry status of network affiliates within their

markets is a factor to be considered in market modification proceedings, this

consideration does not preclude modifications where the underlying factors warrant such

action.”19 In that case, the Commission rejected such an “encroachment” argument,

noting that “Section 614(h)(1)(C) of the Act specifically authorizes the Commission to

determine that particular communities are part of more than one market.”20 Furthermore,

the Bureau’s “economic expectations” and “core” communities policies appear

inconsistent with the Commission’s abolition years ago of the UHF impact and Carroll

doctrines, both of which “address[ed] the issue of economic injury to broadcast

18
Id. at 22, 12.
19
Media Venture Management v. Time Warner Cable, 18 FCC Rcd 16065, 16067 (2003).
20
Id. at 16071.

7
stations.”21 BCI’s arguments that it should be protected from “encroachment” are an

attempt to resurrect another version of these protectionist policies.

Putting aside the premise underlying BCI’s arguments – that the Commission

should protect television stations from competition – BCI’s arguments ignore reality.

First, the Auglaize County Communities are by no means “core” to the Lima DMA. 22

For three years prior to 2013-14, Auglaize County was part of the Dayton DMA, as it has

been 38 years since 1967.23 Having consistently been included in the Dayton DMA, the

Auglaize County Communities cannot be deemed “core” to the Lima DMA.

Second, BCI unrealistically contends that an “economic expectation” underlying

its affiliation agreement with CBS was that the Auglaize County Communities would not

be part of WHIO’s market, and that “no other CBS station would have must carry rights

within the Lima DMA.”24 BCI’s CBS affiliate is not even carried on cable systems in

seven of the Auglaize County Communities, so it is unfathomable how these

communities could be “core” to its market. 25 Moreover, nothing in the affiliation

agreement between BCI and CBS changed the fact that WHIO serves the same area as

21
Policies Regarding Detrimental Effects of Proposed New Broadcast Stations on Existing Stations,
3 FCC Rcd 638, 638 (1988).
22
The Decision denied CMG’s petition to add certain communities in Allen County, Ohio, the “core or
hub” of the Lima DMA, to WHIO’s market. Decision at ¶ 28. Although CMG did not to seek review of
the Bureau’s denial of this portion of WHIO’s petition, it does not acquiesce in the rationale.
23
See Reply Attachment A.
24
Application for Review at 22. BCI also contends that it presented “unrebutted evidence” in support of
this (mistaken) claim. Yet CMG addressed BCI’s claim (see Reply to Oppositions to Petition for Special
Relief at 11-13), as did the Bureau (see Decision at ¶ 26).
25
See Reply to Oppositions to Petition for Special Relief at 8 n.19, MB Docket No. 13-201 (filed Sept. 18,
2013); see also Application for Review at 5-6 (“[The four BCI Lima Stations] are generally, although not
uniformly, carried as a group in the majority of the Auglaize . . . Cable Communities . . . .”) (emphasis
added).

8
BCI’s CBS affiliate (both over the air and via cable), that cable systems in the Auglaize

County Communities have historically carried WHIO, and that viewers in those

communities prefer to get their local news from WHIO, and – most significantly – that

Nielsen usually assigns Auglaize County to the Dayton, not the Lima, DMA.

BCI cites four Bureau decisions in support of its argument that the addition of the

Auglaize County Communities to WHIO’s market undermines the economic expectation

underlying its affiliation agreement with CBS.26 The facts in these four cases bear no

similarity to the facts in this case. In all four cases, the station seeking a market

modification had low viewership in the requested communities compared to the in-

market affiliate.27 In contrast, here WHIO was the highest rated station in Auglaize

County in every single daypart during 2012.28 The Bureau found that in 2013 WHIO had

a share of 9 and a total cume of 62 during the Sunday – Saturday, 7 a.m. – 1 a.m. time

period in Auglaize County, compared to “only a share of 1 and an average cume of 11”

for BCI’s CBS affiliate.29 In three of the cases, the higher rated in-market affiliates were

26
Application for Review at 20 n.51.
27
Free State Communications, LLC, 24 FCC Rcd 7339, 7439 (MB 2000) (“Viewership levels are also
important in reaching our determination, as KMBC, in addition to being significantly viewed, achieves
substantial viewership levels of 7/54 in Douglas County, whereas KTKA is not significantly viewed and
achieves viewership levels of 1/18”); Harron Communications Corp., 14 FCC Rcd 4547, 4556 (CSB 1999)
(“These viewership levels show a marked preference for WCVB-TV and, particularly, WMUR-TV [the
two in-market ABC affiliates] in the subject communities”); Guy Gannett Communications, Inc., 13 FCC
Rcd 23470, 23478 (CSB 1998) (“WBZ-TV, the current CBS affiliate serving the communities, achieves
substantial viewership levels of 7/62 and 11/73 in Strafford and Rockingham Counties, respectively, and is
also considered to be significantly viewed in the two counties while, on the other hand, WGME-TV
achieves viewership levels of 5/41 in Strafford County, and no viewership recorded at all for Rockingham
County . . . . These viewership levels show a preference for WBZ-TV in the subject communities”); Broad
Street Television, L.P., 10 FCC Rcd 5576, 5578 (CSB 1995) (“KWQC-TV’s viewership is negligible at
best for Johnson County – no viewing share on cable, only a 2 share off-air, and very low net weekly
circulation in both cases – which clearly indicates a lack of interest in the station.”).
28
Decision at ¶ 23.
29
Id. at n.75.

9
full-power television stations whose entitlement to mandatory carriage would be

jeopardized by a grant of the lower rated out-of-market affiliate’s petition.30 In contrast,

here the BCI CBS affiliate’s right to mandatory carriage is not jeopardized, because it has

no such right. BCI’s CBS affiliate is broadcast on secondary channel of a low power

station and therefore is not entitled to mandatory carriage.31 Therefore, carriage of

WHIO by cable systems in the Auglaize County Communities does not jeopardize the

mandatory carriage rights of BCI’s CBS affiliate, because it has none. Finally, none of

the cases cited by BCI involve a market modification request for communities that

occasionally shift designations between two DMAs.32

30
See Free State Communications, 24 FCC Rcd at 7349 (“A grant of must carry status to KTKA would . . .
jeopardize KMBC’s must carry status in its own market.”); Guy Gannett Communications, 13 FCC Rcd at
23478, recon. denied 15 FCC Rcd 10762 (CSB 2000) (“A grant of must carry status to WGME-TV . . .
would jeopardize WBZ-TV’s must carry status within its own ADI market.”); Broad Street Television, 10
FCC Rcd at 5578 (“[A] grant of KWQC-TV’s request would relegate TCI’s own market NBC station,
KWWL . . . to the status of the more distant network affiliate, a move which would jeopardize KWWL’s
must carry status within its own ADI market.”).
31
Decision at ¶ 26. Indeed, BCI’s CBS affiliate is not even carried by cable systems in all of the Auglaize
County Communities. See note 25 infra.
32
BCI’s citations to other decisions are similarly unavailing. In Group W Television, Inc., 10 FCC Rcd
2737, 2741 (CSB 1995), the Bureau denied a market modification petition where the petitioning station had
low over-the-air reviewing in the requested communities, which were separated from the petitioning station
by a “substantial terrain barrier.” Neither of those facts is present here. The Commission declined to add
communities in the Sacramento-Stockton ADI, which was created as a separate and distinct ADI from San
Francisco based partly on a well-defined terrain barrier dividing the two ADIs, to the market of a San
Francisco station that had little over-the-air viewing in the communities. In Channel 33, Inc., 11 FCC Rcd
3579, 3582 (CSB 1996), the Bureau actually added eight communities in Palm Beach County, which is the
core county in the West Palm Beach-Fort Pierce-Vero Beach ADI, to the television market of a Miami
station assigned to the Miami-Fort Lauderdale ADI, and denied the petition as to “core” communities,
including West Palm Beach, over which the station did not place a Grade B contour. At best, Channel 33
supports the Bureau’s decision to deny WHIO’s petition as to the Allen County Communities, which
included Lima, but not the Auglaize County Communities, which are located in a separate county and are
served by WHIO’s over-the-air signal. See Decision at ¶ 28. Greater Worcester Cablevision, Inc., 10 FCC
Rcd 12569 (CSB 1995), involved a petition from a cable system to remove communities within a station’s
ADI, and the Bureau denied the request. And BCI ignores the Order on Reconsideration in Tennessee
Broadcasting Partners, 25 FCC Rcd 4857 (MB 2010), the effect of which was to add all of the requested
communities except those with no Grade B coverage or very low ratings in comparison to in-market
affiliates. See id. at 4862; Tennessee Broadcasting Partners, 23 FCC Rcd 3928, 3952 & 3955-56.

10
 BCI argues that the “value of localism” means protecting it from competition.33

The Communications Act, however, enumerates the primary factors the Commission

should take into account in “afford[ing] particular attention to the value of localism”

when considering market-modification petitions.34 The Bureau’s Decision was made in

accordance with these factors. The Bureau expressly found that: (i) WHIO has

historically been carried on the cable systems in the Auglaize County Communities;35 (ii)

WHIO’s over-the-air signal covers the communities;36 (iii) WHIO’s Northern Bureau

provides news coverage for the communities;37 and (iv) WHIO is the first or second most

viewed station in the communities and by far the most-viewed CBS affiliate.38

The Decision, moreover, promotes localism. As BCI points out in its Application

for Review, its stations simulcast the same morning, and early and late evening local

news programming.39 If the Commission accepted BCI’s arguments, BCI would be the

only source of local broadcast television news guaranteed carriage in the Auglaize

County Communities, with BCI’s one “voice” emanating entirely from one newsroom.40

WHIO provides a valuable alternative source of local news programming to the Auglaize

33
See Application for Review at 7 (“[T]he . . . market modification could injure the economic viability of
its hometown Lima stations and threaten their strong commitment to localism.”); id. at 20 (the market
modification will cause “significant harm to both localism and the economic expectations”).
34
See 47 U.S.C. § 534(h)(1)(C).
35
Decision at ¶ 19.
36
Id. at ¶ 20.
37
Id. at ¶ 20.
38
Id. at ¶ 23 & n.75.
39
Application for Review at 5.
40
See CMG’s Reply to Oppositions to Petition for Special Relief at 13.

11
County Communities. WHIO’s news department operates a Northern Bureau, which

focuses exclusively on news stories of particular interest to viewers in communities north

of Dayton, including the Auglaize County Communities.41 Viewers in Auglaize County

watch local news on WHIO more than on any other station.42

Furthermore, as a full power television station, WHIO is entitled to mandatory

carriage on cable systems in the Auglaize County Communities if they are part of its

market. As the Bureau correctly found, BCI’s CBS affiliate is not entitled to carriage,

because it is broadcast on a digital subchannel of a low power station.43 By adding the

Auglaize County Communities to WHIO’s market, the Bureau ensured that at least one

CBS affiliate would be entitled to carriage in those communities.

III. Conclusion

At bottom, Section 614(h)(1)(C)(i) of the Communications Act and Section 76.59

of the Commission’s Rules are consumer-centric. The legislative history of Section

614(h)(1)(C), for instance, indicates Congress’s concern with preserving consumers’

access to a station that they considered local:

[W]here the presumption in favor of [DMA] carriage would

result in cable subscribers losing access to local stations
because they are outside the [DMA] in which a local cable
system operates, the FCC may make an adjustment to
include or exclude particular communities from a television
station’s market consistent with Congress’ objective to
ensure that television stations be carried in the area in
which they serve and which form their economic market.44
41
Id. at 7.

42
See Reply Attachment A.

43
Decision at ¶ 26.
44
H.R. Rep. No. 102-628, 102d Cong., 2d Sess. at 97 (1992).

12
By making WHIO the highest or second highest ranked station in Auglaize County,

particularly in local news, viewers have made their preferences known. WHIO is an

important part of their community.

Accordingly, WHIO urges the Commission to ratify the decision of viewers in the

Auglaize County Communities and affirm the Bureau’s decision to include them in

WHIO’s market for purposes of the cable carriage rules in those years when these

communities are not part of WHIO’s DMA.

Respectfully submitted,
COX MEDIA GROUP
MIAMI VALLEY BROADCASTING
CORPORATION

By: /s/ Meredith S. Senter, Jr.

Meredith S. Senter, Jr.
F. Scott Pippin
Lerman Senter PLLC
2000 K Street, NW, Suite 600
Washington, DC 20006
(202) 429-8970

January 14, 2014 Their Attorneys

13
 CERTIFICATE OF SERVICE

I, Meredith S. Senter, Jr., hereby certify that a true and correct copy of the foregoing

Opposition to Application for Review was served via first-class mail (except as otherwise

indicated) on this 14th day of January 2014, to the following:

Steven Broeckaert*
Deputy Chief Policy Division, Media Bureau
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

William Lake*
Chief, Media Bureau
Federal Communications Commission
445 12th Street, SW
Washington, DC 20555

Claudia Tillery*
Media Bureau
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

John K. Hane
Pillsbury Winthrop Shaw Pittman LLP
2300 N. Street, NW
Washington, DC 20037

Barbara S. Esbin
Bruce E. Beard
Elvis Stumbergs
Scott C. Friedman
Cinnamon Mueller
1333 New Hampshire Ave. N.W.
2nd Floor
Washington, DC 20036

*via e-mail

/s/
Meredith S. Senter Jr.