Federal Communications Commission DA 00-1776 Before the Federal

Federal Communications Commission DA 00-1776

Before the Federal Communications Commission Washington, D.C. 20554

In the Matter of: ) ) SVHH Cable Acquisition, L.P. d/b/a ) Adelphia Cable Communications ) CSR-4601-A ) For Modification of the Richmond, ) Virginia ADI )

ORDER ON RECONSIDERATION

Adopted: August 3, 2000 Released: August 7, 2000

By the Deputy Chief, Cable Services Bureau:

I. INTRODUCTION

1. SVHH Cable Acquisition, L.P. d/b/a Adelphia Cable Communications (“Adelphia”), operator of a cable system serving South Hill, LaCrosse and portions of Mecklenburg County, Virginia, has requested reconsideration of the Bureau’s April 23, 1996 decision denying Adelphia’s request for modification of the Richmond, Virginia area of dominant influence (“ADI”).1 Oppositions to this petition were filed on behalf of Capitol Broadcasting Company, Inc., licensee of Station WRAL-TV (CBS, Ch. 5), Raleigh, North Carolina, and Outlet Broadcasting, Inc., licensee of Television Broadcast Station WNCN (NBC, Ch. 17), Goldsboro, North Carolina. In addition, a letter commenting on Adelphia’s petition was submitted by the general manager of Station WTVR-TV (CBS, Ch. 6), Richmond, Virginia. No reply from Adelphia has been received.

II. BACKGROUND

2. In its request for modification, Adelphia sought to include its system communities within the Richmond, Virginia ADI in order that four Richmond area television stations would become “local” stations. Those four stations are: WRIC-TV (ABC, Ch. 8), Petersburg, Virginia, and WRLH-TV (Ind., Ch 35), WTVR-TV (CBS, Ch. 6), and WWBT (NBC, Ch. 12), of Richmond, Virginia. Adelphia’s system was located within the Raleigh-Durham, North Carolina ADI and, after the Commission’s changeover from the use of Arbitron’s ADIs to Nielsen’s designated market areas (“DMAs”) to designate markets, Mecklenburg County, where Adelphia’s cable system is located, still remains in the Raleigh-Durham DMA.

3. The Bureau denied Adelphia’s request, finding that the four Richmond stations failed to adequately meet the market modification factors. Although all four stations have been historically carried on Adelphia’s cable system, there was no evidence presented to indicate that any of the stations provided local programming geared specifically to the Mecklenburg County area. Moreover, while the cable system

1SVHH Cable Acquisition, L.P. d/b/a Adelphia Cable Communications, 11 FCC Rcd 5653 (1996). Federal Communications Commission DA 00-1776 communities are approximately equidistant between the Raleigh market stations and the Richmond stations, none of the Grade B contours of the Richmond stations encompass the communities and the viewership levels of the Raleigh stations were found, in general, to be considerably higher than those of the Richmond stations. In view of these factors, the Bureau saw no compelling grounds to upset the economic structure of the two markets involved.

III. DISCUSSION

4. In support of its request, Adelphia states that neither its original petition nor its reconsideration petition are an attempt to evade any must carry requirements it may have. Adelphia points out that 11 of its 34 activated channels carry commercial broadcast stations, which, if all were “local,” would fulfill its must carry obligations.2 Adelphia states that it would rather that these 11 channels be filled by stations which are both desired by and provide service to its subscribers. Adelphia argues that, despite the Bureau’s earlier contention, the four Richmond stations herein fulfill those requirements. Adelphia maintains that the Bureau’s original decision acknowledged that the Richmond stations met the historical carriage criterion and achieved respectable viewership in Mecklenburg County, but discounted the viewership finding because the viewership levels of the local market North Carolina stations “meet or exceed” that of the Richmond stations.3 Adelphia asserts that nowhere in the statute, legislative history, Commission regulations, or precedent is there a requirement that broadcast stations seeking to be included in an ADI show that their viewership levels are greater than stations already in the ADI. The only significance of this factor, argues Adelphia, is to show that if a sufficient number of viewers watch a station it therefore has a market in the community. Adelphia states that such is the case here where the viewership data clearly shows that a substantial number of Mecklenburg County households, both cable and noncable, watch the Richmond stations.4 Adelphia argues that this factor is only enhanced by the fact that all four stations qualify as significantly viewed in the county.5

5. Further, Adelphia contends that all of the Richmond stations provide an important programming service to its subscribers which is not available from North Carolina stations. In addition to letters from Stations WTVR-TV and WRLH-TV, which were previously submitted in its original modification request, Adelphia submits letters in support from Stations WRIC-TV and WWBT.6 Adelphia points out that WRIC-TV quotes 18th District State Senator Louise Lucas on the importance of WRIC- TV’s political coverage.7 In addition, WRIC-TV indicates that not only does it have the largest share of audience in Mecklenburg County out of the four Richmond stations, but Mecklenburg County is an

2Petition at 2. 3SVHH Cable, 11 FCC Rcd 5653, 5660 (1996). 4Petition at 3. 5Adelphia states that WTVR-TV and WRIC-TV have been officially granted significantly viewed status by the Commission while, according to Arbitron’s 1993 County/Coverage Survey, WWBT and WRLH-TV meet the significantly viewed standards. 6Petition at Exhibits 2 and 3. 7Id. at Exhibit 3. In a letter to the station quoted by WRIC-TV, Senator Lucas states: “I consider it extremely important for this cable system to continue to provide WRIC-TV to their customers, in particular because of their consistent and outstanding coverage of state politics and government. How else are the viewers going to get information on a daily basis of how the legislature affects them in their daily lives.” Further Senator Lucas states that she has “enjoyed a positive relationship with Channel 8 [WRIC-TV]” and considers them “a valuable resource” to southside Virginia.

2 Federal Communications Commission DA 00-1776 important advertising market in that several of its advertisers have retail outlets in the South Hill/LaCrosse market. With regard to WWBT, Adelphia notes that the station indicates that it has carried hundreds of news stories regarding the most recent Virginia Governor’s and Senate races.8 Moreover, in one year alone WWBT states that it carried over 50 stories on the Virginia House of Representatives race in the district covering Mecklenburg County.9 WWBT notes that calls to North Carolina stations WRAL-TV, WTVD, WRDC and WLFL-TV indicate that no Virginia candidates have ever advertised on those stations.

6. In opposition, WRAL-TV states that the Bureau correctly denied Adelphia’s original petition because the system failed to meet its evidentiary burden. It argues that in that decision the Bureau properly found that the Richmond stations did not provide local coverage as they cast no Grade B signals over Mecklenburg County, the stations did not provide local programming, and the Raleigh-Durham stations have substantially higher viewersehip levels than the Richmond stations.10 Moreover, WRAL-TV states that the Bureau found that the vague letters from two of the four Richmond stations which Adelphia submitted in its original petition were not sufficient to prove that the stations provided local programming.11

7. In addition, WRAL-TV argues that not only are the letters from WRIC-TV and WWBT vague and insufficient, but the system’s attempts to include them at this juncture is barred by Section 1.106(c) of the Commission’s rules.12 Indeed, WRAL-TV points out that WRIC-TV admits that it provides no coverage of local Mecklenburg issues. While WWBT does provide transcripts of its local coverage of Mecklenburg news stories, WRAL-TV maintains that this evidence applies only to WWBT and cannot be applied to all four stations as a whole. Finally, WRAL-TV argues that Adelphia is misplaced in its claim that the Bureau improperly compared the viewership of the Raleigh stations against that of the Richmond stations. Comparison of viewership is not only within Commission precedent, but consistent with Congress’ intent.13 WRAL-TV states that this is particularly true here where grant of Adelphia’s request could result in the removal of long-carried Raleigh-Durham network affiliates in favor of the geographically closer Richmond stations.

8. WNCN argues that Adelphia does not present any factual or legal justification warranting a different result and its petition for reconsideration should be denied. WNCN maintains that the Bureau

8This petition was filed prior to the outcome of the past state elections. 9Petition at Exhibit 3. WWBT provides documentation of its coverage of local news and weather stories in Mecklenburg County from 1992 to 1996. 10According to the 1995 A.C. Nielsen County/Coverage Survey, the reported viewership levels are: Affiliation Raleigh Total Net Weekly Richmond Total Net Weekly Station Viewing Circulation Station Viewing Circulation Hours Hours Ind. WLFL-TV 3 35 WRLH-TV 3 31 NBC WNCN 1 11 WWBT 3 38 WRDC 7 51 ABC WTVD 19 69 WRIC-TV 10 27 CBS WRAL-TV 13 72 WTVR-TV 3 15

11SVHH Cable, 11 FCC Rcd 5653, 5660. 1247 C.F.R. §1.106(c). 13Opposition at 6, citing Meredith Corporation, 10 FCC Rcd 7141, 7145 (1995); Federal Broadcasting Company, 10 FCC Rcd 7122, 7125 (1995); and WestStar Communications, Inc., 11 FCC Rcd 4815, 4824 (1996).

3 Federal Communications Commission DA 00-1776 thoroughly reviewed the evidence presented. Moreover, it argues that the material Adelphia submits herein is both procedurally unacceptable and substantially unpersuasive. WNCN points out that Section 1.106(c) of the rules states that “a petition for reconsideration which relies on facts not previously presented may be granted only if those facts relate to developments that occurred since the release of the determination or to matters that could not have been learned, in the exercise of ordinary diligence, prior to the determination.”14 In this instance, WNCN states that not only does the newly-presented correspondence from WRIC-TV and WWBT include information which should have been offered at the time of Adelphia’s initial petition, but neither letter relies on circumstances that have occurred since Adelphia’s previous request.15 In any event, WNCN argues that the information provided in these letters does not compel a change in the Bureau’s decision. WNCN points out that WRIC-TV admits that it focuses more on developments in Richmond and does not indicate that advertisers in the Mecklenburg area actually advertise on its station. In addition, WNCN states that the programming information supplied by WWBT predates the filing of Adelphia’s original request and is inadequate to support grant of a modification, either for WWBT itself or all four Richmond stations as a group. Finally, WNCN maintains that even if the Bureau’s conclusions regarding the Richmond stations’ viewership relative to that of the Raleigh stations is disregarded, Adelphia’s request could not be granted given its failure to satisfy the other statutory criteria.

9. In his comments, the general manager of WTVR-TV states that while he agrees that Mecklenburg County is closer to the North Carolina TV market, he feels that the county residents should have some access to Virginia-based news. He urges, therefore, that the Commission grant the carriage of at least one or two Richmond stations on the Adelphia cable system.

10. The petition for reconsideration will be denied. Section 614(h) provides that the Commission shall consider market modification requests and in doing so:

shall afford particular attention to the value of localism by taking into account such factors as -

(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;

(II) whether the television stations provides coverage or other local service to such community;

(III) whether any other television station that is eligible to be carried by a a cable system in such community in fulfillment of the requirements of this section provides news coverage of issues of concern to such community or provides carriage or coverage of sporting and other events of interest to the community; and

(IV) evidence of viewing patterns in cable and noncable households within the areas served by the cable system or systems in such community.16

1447 C.F.R. §1.106(c)(emphasis supplied). 15In the interests of a complete record, we admit the letters submitted by Adelphia from WRIC-TV and WWBT. 16Implementation of the Cable Television Consumer Protection and Competition Act of 1992, Broadcast Signal Carriage Issues (“Must Carry Order”), 8 FCC Rcd 2965, 2976 (1993).

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11. The Commission provided the following guidance in its Must Carry Order implementing Section 614 to aid in decision-making in market modification matters:

To show that the station provides coverage or other local service to the cable community (factor 2), parties may demonstrate that the station places at least a Grade B coverage contour over the cable community or is located close to the community in terms of mileage. Coverage of news or other programming of interest to the community could be demonstrated by program logs or other descriptions of local program offerings. The final factor concerns viewing patterns in the cable community in cable and noncable homes. Audience data clearly provide appropriate evidence about this factor. In this regard, we note that surveys such as those used to demonstrate significantly viewed status could be useful.17

12. We find that the original decision took into account the statutory factors and the above guidance in making its decision. The approach with regard to historic carriage (factor I), coverage and local service to the communities (factor II), and coverage of the communities by other stations (factor III), were well reasoned and sufficiently articulated. As such, these factors do not warrant further reexamination and the Bureau’s decision pertaining to those issues are therefore affirmed.18 As for audience share (factor IV), we do not agree with Adelphia that the Bureau erred in comparing the viewership levels of the Richmond stations with those of the North Carolina stations. In reviewing modification criteria, a comparison of this factor can more adequately provide a demonstration as to the level at which a station is part of a particular community’s economic marketplace. This is especially true in situations, such as here, where a station has failed to show that it meets other statutory requirements for modification. Moreover, while Adelphia points to the significantly viewed status of the four stations involved, it should be noted that only two, WTVR-TV and WRIC-TV, were officially affirmed as having achieved significantly viewed status within their first three years of operation, as required by Section 76.54 of the Commission’s rules.19 As a station which was on-the-air prior to March 31, 1972, WWBT would need to provide a community- specific showing pursuant to Section 76.54(b) of the rules in order to prove significantly viewed status in the instant communities.20 WRLH-TV, on the other hand, would be required to provide county-wide survey information from within its first three years of operation (i.e., 1981 thru 1983) pursuant to Section 76.54(d) of the rules.21 Finally, we note that, despite the assurances expressed by Adelphia, given the equidistant nature of the Richmond stations relative to the Raleigh market stations, establishment of the Richmond market stations as must carry for the Mecklenburg County communities could potentially threaten the continued carriage of current market stations which have shown a greater overall nexus to the

17Id. at 2977. 18We note that the underlying decision carefully considered each statutory factor and the Bureau was under no obligation to give particular weight to any of them. See Time Warner Entertainment Co. v. FCC, 56 F. 3d 151, 175 (D.C. Cir. 1995); accord Omnipoint Corp. v. FCC, 78 F. 2d 620, 633-634 (D.C. Cir. 1996)(“When Congress directs an agency to consider certain factors, the agency simply “must reach an express and considered conclusion about the bearing of a factor, but is not required to give any specific weight to it.”) 1947 C.F.R. §76.54. 2047 C.F.R. §76.54(b). 2147 C.F.R. §76.54(d).

5 Federal Communications Commission DA 00-1776 communities.22

IV. ORDERING CLAUSES

13. Accordingly, IT IS ORDERED that the petition for reconsideration filed by SVHH Cable Acquisition, L.P. d/b/a Adelphia Cable Communications IS DENIED.

14. This action is taken pursuant to authority delegated by Sections 0.321 and 1.106 of the Commission’s rules.23

FEDERAL COMMUNICATIONS COMMISSION

William H. Johnson Deputy Chief, Cable Services Bureau

2247 C.F.R. §76.56(b)(4)(ii). 2347 C.F.R. §§0.321 and 1.106.