based upon the quality of the picture on the subscriber’s television set, rather than by conducting a signal strength test. Even if WTVD has waived the right to contest service to the 100 households for which it withdrew its challenge, this evidence is insufficient as a matter of law to carry PrimeTime’s burden of establishing a market-wide waiver of the right to insist on a signal strength test for subscriber eligibility. The methodology by which WTVD engineers decided to withdraw certain challenges simply does not translate into an intentional decision by WTVD to forever abandon SHVA’s signal strength test in favor of PrimeTime’s subjective picture quality test with respect to every subscriber in the local market. Cf. Microstar v. Formgen, Inc., 942 F.Supp. 1312, 1318 (S.D.Cal.1996) (<HOLDING>). D. Reporting Violations PrimeTime argues that
holding res judicata barred plaintiffs derivative suit because of a final judgment in a prior derivative lawsuit holding not only does cincinnatis categorical ban on commercial newsracks place too much importance on the distinction between commercial and noncommercial speech but in this case the distinction bears no relationship whatsoever to the particular interests that the city has asserted holding that because literary works including compilations and derivative works are within the subject matter of copyright state common law that purported to protect a work for which plaintiffs copyright action was unsuccessful was preempted recognizing that noncommercial speech is accorded greater protection under the first amendment than is commercial speech and striking down ordinance that imposed a greater restriction on political than on commercial billboards holding that the plaintiffs allowance of customers to create derivative works for noncommercial purposes did not impliedly license commercial competition