FCC Clarifies Orphan County Standards, on La Plata Market Mod

The order is a ruling on an application for review filed against the bureau’s decision by Hearst and Nexstar. “We agree with the Applicants that the Bureau erred in granting La Plata a waiver of a requirement to submit certain evidence and in the manner in which it weighed some of the market modification statutory factors,” the order said. “However, we find that the overall weight of the evidence supports grant of the petitions.”

Hearst and Nexstar challenged MB’s original grant of the petitions partly because the bureau granted La Plata waivers of required evidence and treated evidence that should have been held against the La Plata petitions -- such as the lack of viewing history in La Plata for the Denver stations having their markets modified -- as neutral, the order said: The bureau’s actions would “improperly create a regime” under which any market modification petition would be granted if it brings in-state stations to an orphan county, regardless of any other considerations. The bureau shouldn’t have granted the waivers, commissioners said. In the future, the bureau should “dismiss without prejudice” petitions that “fail to either include all required supporting evidence, or reflect at least an effort to obtain that evidence,” the FCC said. Hearst declined to comment while Nexstar, La Plata and the FCC didn't comment immediately.

The agency similarly criticized the bureau’s downplaying of evidence that didn’t support finding La Plata as an orphan county. Staff had treated geographic proximity, historic carriage and historic viewership in the area as “enhancement factors” -- “only giving them weight to the extent they support the addition of communities to a station’s market,” the order said. Lack of proximity or history in an area isn’t a basis for denying an orphan county petition when other factors support a grant, but “the Bureau erred in its decision to treat them as neutral any time they fail to support the expansion of a market,” commissioners said.

Staff incorrectly treated all in-state programming as local, and treated as neutral that the existing in-market stations covered some local La Plata news, the order said. Since the overwhelming number of La Plata commenters said the current news coverage was insufficient, that factor should have been considered a mark in favor of modifying the market, the FCC said. “Compelling evidence of a significant unmet community need is grounds to give this factor positive weight.”

The Denver stations’ lack of history in La Plata counted against the market modification petitions but doesn’t outweigh the evidence from the community that the current market arrangement wasn’t meeting its needs, the FCC said. “There is overwhelming and unanimous support for access to the Denver stations from viewers in La Plata.”

The regulator rejected broadcaster arguments that the Denver stations weren’t cooperating with the La Plata petitions and that granting petitions simply because they're in-state could jeopardize the designated market area system. “There is no requirement that the Stations cooperate,” the order said, but also emphasized that communities seeking market modification would be “well-served” to cooperate with the stations in the markets they're seeking to join. The DMA argument “isn’t compelling” because Congress didn’t direct the FCC to consider the stability of existing DMAs when considering such petitions, the order said. Increasing the access of orphan counties to in-state programming was a key goal of Congress, the agency said. “By executing the statutory directive, we are ameliorating a significant problem, i.e., the “orphan county” problem, thereby strengthening the DMA system overall.”

La Plata was the first local government entity to petition for market modification in the wake of the 2016 passing of Satellite Television Extension and Localism Act reauthorization, Columbia Journalism Reviewreported in looking at the so-called orphan county. Colorado Attorney General and former communications lawyer Phil Weiser (D) had said he felt confident the FCC would act on the matter soon after a March meeting with Chairman Ajit Pai.

The Denver stations didn't seem to be carried to subscribers in the county by AT&T's DirecTV or by Dish Network, so commissioners ordered those direct broadcast satellite providers to carry those outlets there. They also required "independent status reports explaining the delay in provision of the Stations to every viewer in the Denver Stations’ market."

“The FCC’s ruling is great news for La Plata County satellite customers," a Dish spokesperson emailed us. "This development would not be possible without the ongoing, bipartisan efforts" Colorado's senators, Rep. Scott Tipton, R-Colo., and AG Weiser, the spokesperson added. AT&T declined to comment.

The Denver-area TV stations involved are KDVR, KCNC, KMGH and KUSA. Tegna, owner of KUSA, is reviewing the decision, its representative said. E.W. Scripps, owner of KMGH, declined to comment. Other broadcasters involved didn't comment right away.