DA 95-976 Federal Communications Commission Record 10 FCC Red No. 10

receive a preponderance of total viewing hours in the Before the country. For purposes of. this calculation, both over-the- Federal Communications Commission air-and viewing are included.5 Washington, D.C. 20554 3. Under the Act, however, the Commission is also di rected to consider changes in ADI areas. Section 614(h) provides that the Commission may: In re: with respect to a particular television broadcast sta Diversified Communications CSR-3970-A tion, include additional communities within its tele Gainesville, vision market or exclude communities from such station©s television market to better effectuate the Petition for Special Relief purposes of this section. for Modification of Station WCJB-TV©s ADI In considering such requests, the 1992 Cable Act provides that:

MEMORANDUM OPINION AND ORDER the Commission shall afford particular attention to the value of localism by taking into account such Adopted: April 28,1995; Released: May 8,1995 factors as:

By the Chief, Cable Services Bureau: (I)whether the station, or other stations located in the same area, have been historically carried on the cable system or systems within such community; INTRODUCTION (II) whether the provides coverage 1. Diversified Communications ("WCJB-TV"), licensee of or other local service to such community; Station WCJB-TV (ABC, Channel 20), Gainesville. Florida, has filed the above-captioned petition for special relief (III) whether any other television station that is eli requesting the Commission to modify its television market gible to be carried by a cable system in such commu for purposes of establishing must-carry rights to include 26 nity in fulfillment of the requirements of this section communities in Marion County, Florida 1 within the provides news coverage of issues of concern to such Gainesville, Florida "area of dominant influence" ("ADI"). community or provides carriage or coverage of sport The petition is opposed by WFTV, Inc. ("WFTV"), licensee ing and other events of interest to the community; of Station WFTV (ABC, Channel 9), Orlando, Florida, and and WCJB-TV has replied. (IV) evidence of viewing patterns in cable and noncable households within the areas served by the cable system in such community.6 BACKGROUND 2. Pursuant to §4 of the Cable Television Consumer 4. The legislative history of this provision indicates that: Protection and. .Competition Act of 1992 ["1992 Cable Act"]2 and implementing rules adopted by the Commission in its Report and Order in MM Docket 92-259? a commer where the presumption in favor of ADI carriage cial television broadcast station is entitled to assert man would result in cable subscribers losing access to datory carriage rights on cable systems located within the local stations because they are outside the ADI in station©s market. A station©s market for this purpose is its which a local cable system operates, the FCC may "area of dominant influence" or ADI, as defined by the make an adjustment to include or exclude particular Arbitron audience research organization.4 An ADI is a communities from a television station©s market con geographic market designation that defines each television sistent with Congress© objective to ensure that televi market exclusive of others, based on measured viewing sion stations be carried in the areas which they serve patterns. Essentially, each county in the is and which form their economic market. allocated to a market based on which home-market stations

1 These communities are: Orange Springs, Mclntosh, Citra, poses of the broadcast multiple ownership rules. Section Reddick, Sparr, Fort McCoy, Eureka, Salt Springs, Anthony, 76.55(e) of the Commission©s Rules provides that the ADls to be Silver Springs, Ocala, Lynn, Silver Springs Shores, Moss Bluff, used for purposes of the initial implementation of the man Belleview, Oklawaha. Summerfield, Marion Oaks, Pine Run, datory signal carriage rules are those published in Arbitron©s Oak Run, Dunnellon, Orange Lake, Sharpsferry, Rainbow Park, 1991-1992 Television Market Guide. Southgate, and Rainbow Springs. 5 Certain counties are divided into more than one sampling 2 Pub. L. No. 102-385, 106 Stat. 1460 (1992). unit because of the topography involved. Also, in certain cir 3 8 FCC Red 2965, 2976-2977(1993). cumstances, a station may have its home county assigned to an 4 Section 4 of the Cable Act specifies that a commercial ADI even though it receives less than a preponderance of the broadcasting station©s market shall be determined in the man audience in that county. Refer to Arbitron©s Description of ner provided in §73.3555(d)(3)(i) of the Commission©s Rules, as Methodology handbook for a more complete description of how in effect on May 1, 1991. This section of the rules, now counties are allocated. redesignated §73.3555(e)(3)(i), refers to Arbitron©s ADI for pur 6 47 U.S.C. §534(h)(l)(C)(ii).

4998 10 FCC Red No. 10 Federal Communications Commission Record DA 95-976

station whose signal substantially duplicates the signal of any other local signal carried or the signals of more than [This subsection] establishes certain criteria which the one local station affiliated with a particular broadcast net Commission shall consider in acting on requests to work. If pursuant to these requirements, a system operator modify the geographic area in which stations have elects to carry the signal of only a single affiliate of a signal carriage rights. These factors are not intended broadcast network, it is obligated to carry the affiliate from to be exclusive, but may be used to demonstrate that within the ADI whose is closest to the a community is part of a particular station©s market.7 principal headend of the cable system: 11 Accordingly, based on the specific circumstances involved, the addition of communities to a station©s ADI may guarantee it cable 5. The Commission provided the following guidance in carriage and specific channel position rights, or simply the Report and Order to aid decision making in these provide the system operator with an expanded list of must- matters: carry signals from which to choose, i.e., when it has used up the channel mandated for broadcast signal carriage, or For example, the historical carriage of the stations determined which of duplicating stations are entitled to could be illustrated by the submission of documents carriage priority. listing the cable system©s channel line-up (e.g., rate cards) for a period of years. To show that the station provides coverage or other local service to the cable MARKET FACTS AND ARGUMENTS OF THE PARTIES community (factor 2), parties may demonstrate that 8. The communities at issue here are all located in the station places at least a Grade B coverage contour Marion County, Florida, which is located within the Or- over the cable community or is located close to the lando-Daytona Beach-Melbourne ADI. The Gainesville community in terms of mileage. Coverage of news or ADI, in which WCJB-TV is located, consists of four coun other programming of interest to the community ties, and the communities here in question are located could be demonstrated by program logs or other immediately to the south of the ADI. descriptions of local program offerings. The final fac 9. In support of its petition, WCJB-TV states that it has tor concerns viewing patterns in the cable commu been historically carried on numerous Marion County ca nity in cable and noncable homes. Audience data ble systems. In addition, in order to show that it provides clearly provide appropriate evidence about this fac coverage and other local service to Marion County, WCJB- tor. In this regard, we note that surveys such as those TV states that its Grade B contour encompasses a substan used to demonstrate significantly viewed status could tial portion of Marion County. Each of the communities be useful. However, since this factor requires us to that WCJB-TV requests to be included within the Gaines evaluate viewing on a community basis for cable and ville ADI receives Grade B coverage from the station, with noncable homes, and significantly viewed surveys the exception of Salt Springs, which is just outside the typically measure viewing only in noncable house Grade B contour. WCJB-TV also states that it provides holds, such surveys may need to be supplemented coverage of local Marion County news and weather and with additional data concerning viewing in cable goes as far as interrupting its programming to warn Marion homes.8 County viewers of impending weather threats and instructs viewers as to the necessary precautions. Moreover, WCJB- 6. In adopting rules to implement this provision, the TV states that its presence in Marion County extends be Commission indicated that requested changes should be yond its daily news and other broadcasts because the considered on a community-by-community basis, rather station sponsors community events and station personnel than a county-by-county basis, and that they should be are actively involved in the community. treated as specific to particular stations, rather than ap 10. Finally, WCJB-TV states that there is evidence of plicable in common to all stations in the market.9 The widespread viewership of the station in Marion County. In rules further provide, in accordance with the requirements support, WCJB-TV submits a 1992 "Nielsen Special Geo of the Act, that a station not be deleted from carriage graphic Study" which shows that during that year it had during the pendency of an ADI change request. 10 the highest rating and share of any local news program in 7. Adding communities to a station©s ADI generally en Marion County in the 6:00 p.m. time slot. In addition, titles that station to insist on cable carriage in those com while not the leader in the 11:00 p.m. slot, the information munities. However, this right is subject to several submitted shows that WCJB-TV had the second highest conditions: 1) a cable system operator is generally required rating and share of local Marion County news programs. to devote no more than one-third of its activated channel Moreover, WCJB-TV notes that its news programs attract a capacity to compliance with the mandatory signal carriage far greater share of Marion County viewers than the news obligations; 2) the station is responsible for delivering a programs of WFTV. According to the information submit good quality signal to the principal headend of the system; ted, WCJB-TV©s total share during the 6:00 p.m. news slot 3) indemnification may be required for an increase in is 27. compared to an 18 share for WFTV. In the 11:00 copyright liability resulting from carriage; and 4) the sys p.m. slot, WCJB-TV©s total share is 18. compared to a 10 tem operator is not required to carry the signal of any share for WFTV. With regard to the average quarter hour

7 H.R. Rep. 102-628, 102d Cong., 2d Sess. 97 (1992). 8 8 FCC Red at 2977 (emphasis in original). 9 MM Docket 92-259, 8 FCC Red at 2977 n. 139. 10 47 C.F.R. §76.59. 11 MM Docket 92-259, 8 FCC Red at 2981.

4999 DA 95-976 Federal Communications Commission Record 10 FCC Red No. 10 viewership in Marion County for WCJB-TV in cable and demonstrated that it provides local service to those commu noncable households, the information submitted shows that nities and that it has significant viewership in Marion the station has a 9 share among cable households and a 14 County which relies on the station for local service. share among noncable households. This means that in cable households, WCJB-TV ranks fourth among the eight commercial stations in the Gainesville and Orlando mar ANALYSIS AND DECISION kets. Among the noncable households in Marion County, 13. WCJB-TV has demonstrated in its petition that the WCJB-TV ranks second in the market. WCJB-TV also Marion County communities in question are logically part points out that it has the same total share of viewing of its ADI market under the factors specified in the 1992 households as WFTV. Cable Act, and its petition will accordingly be granted. 12 11. In opposition, WFTV argues that WCJB-TV©s petition WCJB-TV has shown Grade B coverage to a substantial is procedurally defective because it fails to demonstrate portion of Marion County, including all of the commu community-specific support for the requested market nities that it requests to be included within the Gainesville change, but instead relies on county-wide information to ADI, with the exception of Salt Springs, which is just support its request. In the event that the petition fails on outside the station©s Grade B contour. We have previously procedural grounds, WFTV argues that the petition fails stated that this is sufficient to demonstrate coverage or sufficiently to demonstrate relief under the four statutory other local service. 13 Moreover, this showing is augmented factors taken into account when evaluating ADI by evidence submitted by WCJB-TV that it provides cov reassignment requests. Specifically, WFTV argues that erage of local Marion County news and weather, and that WCJB-TV fails to show an historical record of cable car its presence in the community extends beyond its various riage. In addition, WFTV argues that WCJB-TVs petition broadcasts because it sponsors community events and sta makes no showing of service to specific communities, but tion personnel are actively involved in those events. While instead relies on brief overviews of activities and program we recognize that Salt Springs is beyond WCJB-TV©s pre ming within Marion County. WFTV also argues that in dicted Grade B contour, we nevertheless believe, based addition to itself, other Orlando television stations report upon the relatively high viewership shares obtained by the on events and issues of concern to Marion County but this station, its long term carriage in the community, and Salt factor is ignored by WCJB-TV. Springs© close proximity to WCJB-TV©s predicted Grade B 12. WFTV also argues that there is no factual support for contour, that a grant of WCJB-TV©s petition, including this WCJB-TV©s assertion that viewer ratings and share of au community; is warranted. With regard to long term car dience information for the times during which news pro riage, WCJB-TV has a history of carriage on the cable gramming is aired indicates that the station provides the systems serving a majority of the communities at issue most significant local television service to Marion County. since 1990, and has demonstrated carriage on the systems WFTV contends that WCJB-TV©s argument in this regard is serving all of the communities since 1993. l4 flawed because the station should not be comparing its 14. WCJB-TV has not provided information as to lack of individual rating and share for news to all the other sta specific coverage of local events, sports, or news in these tions in both the Gainesville and Orlando ADIs. According communities by other stations presently eligible to assert to WFTV, the more appropriate comparison is the share mandatory carriage rights on cable systems serving these enjoyed by the total Gainesville ADI stations compared to communities. However, we do not believe that Congress that by the total Orlando ADI stations. When this compari intended this criterion to act as a bar to a station©s ADI son is made, according to WFTV, the news programming claim if it to be shown that other stations serve the offered by the Orlando stations, as a group, is preferred to communities at issue. Rather, we believe that this criterion that offered by WCJB-TV, the sole Gainesville station was intended to enhance a station©s claim where it could be broadcasting news programming during the subject time shown that other stations do not serve the communities at periods. Moreover, WFTV states that a comparison of the issue. Finally, WCJB-TV data from Nielsen demonstrate 1992 and 1993 Nielsen share of audience information for that the station has a substantial viewing audience in Mar the two stations reveals that WCJB-TV©s share for the 6 ion County, and that it is competitive with its neighboring p.m. and 11 p.m. news has decreased while WFTV©s share ABC affiliate in Orlando, WFTV, especially in the area of has increased. As a result. WFTV notes that WCJB-TV©s news programming. This is also reflected in recent data 1993 share of the 6 p.m. news is now only greater than its from Arbitron, which show that WCJB-TV has a 10 share own by one and it exceeds WCJB-TV©s share by two in the of viewing hours and a net weekly circulation of 56 in 11:00 p.m. slot. In its reply, WCJB-TV generally responds cable homes in Marion County (compared with a 10 share by stating that it is not seeking reassignment of Marion and net weekly circulation of 68 for WFTV). and 16 share County to its market, but is instead merely attempting to maintain existing cable carriage of WCJB-TV in the com munities at issue. The station also responds that it has

12 WFTV argues that WCJB-TVs petition is procedurally de 14 In order to substantiate its claim. WCJB-TV submitted an fective because it fails to demonstrate community-specific sup exhibit, supported by a sworn affidavit, attesting to the fact that port for its requested market change. We disagree. We believe it has been carried on the cable systems serving all of the that WCJB-TV properly characterized its ADI modification re communities at issue since May 1993. Moreover, review of avail quest and was not requesting the reassignment of Marion Coun able Commission resources indicates that cable systems in a ty to WCJB-TV©s television market, but instead was requesting majority of the communities involved here were carried on the addition of 26 communities in that county to its market. WCJB-TV since at least 1990. 13 MM Docket 92-259, 8 FCC Red at 2977. See also paragraph 5, supra.

5000 10 FCC Red No. 10 Federal Communications Commission Record DA 95-976 and net weekly circulation of 52 in noncable homes in Marion County (compared with a 12 share and net weekly circulation of 52 for WFTV). 15 15. In view of the foregoing, we find that grant of WCJB-TV©s petition is in the public interest. This deter mination is subject to all generally applicable limitations on signal carriage rights, including copyright liability, channel capacity, and program duplication. See paragraph 7. supra.

ORDER 16. Accordingly, IT IS ORDERED, pursuant to §614(h) of the Communications Act of 1934, as amended (47 U.S.C §534), and §76.59 of the Commission©s Rules, 47 C.F.R. §76.59, that the captioned petition for special relief filed June 16, 1993 by Diversified Communications IS GRANTED. 17. IT IS FURTHER ORDERED, That this change shall be effective in accordance with the following schedule: WCJB-TV shall notify the cable systems in question in writing of its carriage and channel position elections (§§76.56, 76.57 and 76.64(f) of the Commission©s Rules) within 30 days of the release date of the Memorandum Opinion and Order. The affected cable systems shall come into compliance with the applicable rules within 60 days of such notification. 18. This action is taken pursuant to authority delegated by §0.321 of the Commission©s Rules.

FEDERAL COMMUNICATIONS COMMISSION

William H. Johnson Deputy Chief, Cable Services Bureau

15 Arbitron, Television County Coverage: Florida (Cable-Con that county should be added to the market of a single station, trolled Counties), 1993. We do not agree with WFTV that when WCJB-TV. For that purpose, we are only interested in the examining viewer data the more accurate comparison is be ratings of that station and not in a comparison of ratings tween the total Gainesville market as compared to the total between the Gainesville and Orlando markets. Orlando market. It is not a matter of whether Marion County should be in either of the two markets. Instead, we are deter mining whether or not the above-referenced communities in

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