10 FCC Red No. 17 Federal Communications Commission Record DA 95-1700

tion, WRC-TV (NBC, channel 4), Wash Before the ington, D.C. ("WRC"), has filed an Informal Objection, Federal Communications Commission opposing the grant of WHAG-TV©s petition with respect to Washington, D.C. 20554 communities included in the eight counties that are part of the Washington, D.C. ADI. WHAG-TV has filed an opposi tion to WRC©s Informal Objection.3 In re:

Great Trails Broadcasting Corp. CSR-3826-A BACKGROUND Hagerstown, 2. Pursuant to Section 4 of the Con sumer Protection and Competition Act of 1992 ("1992 Cable Act")4 and implementing rules adopted by the Com For Modification of Station mission in its Report and Order in MM Docket No. 92-259,* WHAG-TV©s ADI commercial television broadcast stations are entitled to as sert mandatory carriage rights on cable systems located within the station©s market. A station©s market for this MEMORANDUM OPINION AND ORDER purpose is its "area of dominant influence" or ADI as defined by the Arbitron audience research© organization.6 Adopted: July 28,1995; Released: August 11,1995 An ADI is a geographic market designation that defines each television market exclusive of others, based on mea By the Deputy Chief, Cable Services Bureau: sured viewing patterns. Essentially, each county in the United States is allocated to a market based on which home-market stations receive a preponderance of total INTRODUCTION viewing hours in the county. For purposes of this calcula 1. Great Trails Broadcasting Corporation ("WHAG-TV"), tion, both over-the-air and cable television viewing are licensee of television station WHAG-TV (NBC, channel included.7 25), Hagerstown, Maryland, has filed the captroned petition 3. Under the Act, however, the Commission is also di for special relief seeking to include communities located in rected to consider changes in ADI areas. Section 614(h) the following ten counties within the Hagerstown, Mary provides that the Commission may: land "area of dominant influence" ("ADI") for purposes of the cable television mandatory broadcast signal carriage with respect to a particular television broadcast sta rules: Frederick, Allegany, and Garrett Counties in Mary tion, include additional communities within its tele land; Franklin and Fulton Counties in ; vision market or exclude communities from such Berkeley, Jefferson, Morgan, and Hampshire Counties in station©s television market to better effectuate the ; and Frederick County in Virginia.1 WHAG- purposes of this section. TV©s ADI currently consists of a single county, Washington County, Maryland. The communities that WHAG-TV seeks to have added to its ADI are served by a number of In considering such requests, the Act provides that: different cable systems and are part of the following three ADIs: Washington, D.C.; , Pennsylvania; and the Commission shall afford particular attention to Johnstown-Altoona, Pennsylvania.2 Central Virginia Cable, the value of localism by taking into account such Inc. ("CVC") and Time Warner Cable ("Time Warner1©) '• factors as - have filed oppositions to WHAG-TV©s petition. WHAG-TV has filed comments in reply to these oppositions. In addi

1 See Appendix A for a list of the communities at issue in this will accept WRC©s comments in the interest of developing a proceeding (the "Communities"). WHAG-TV has also asked the complete record in this matter. Commission to refund its filing fee of $790.00. WHAG-TV con 4 Pub. L. No. 102-385, 106 Stat. 1460 (1992). tends that petitions requesting significantly viewed status were 5 8 FCC Red 2965, 2976-2977 (1993). not subject to a fee and that ADI modification petitions should 6 Section 614(h)(l)(C) of the 1992 Cable Act specifies that a be treated similarly. This matter has been referred to the broadcasting station©s market shall be determined in the man Managing Director©s Office for appropriate action. ner provided in §73.3555(d)(3)(i) of the Commission©s Rules, as 2 See Appendices A and B. in effect on May 1, 1991. This section of the rules, now 3 In its opposition, WHAG-TV argues, among other things, redesignated §73.3555(e)(3)(i), refers to Arbitron©s ADI for pur that WRC©s Informal Objection should be dismissed as un poses of the broadcast multiple ownership rules. Section timely. WHAG-TV states that it filed its petition for special 76.55(e) of the Commission©s Rules provides that the ADIs to be relief on May 10, 1993 and served WRC with that petition. used for purposes of the initial implementation of the man WHAG-TV asserts that the Commission placed the petition on datory carriage rules are those published in Arbitron©s public notice on June 11, 1993 and specified that comments 1991-1992 Television Market Guide. were to be filed by July 1, 1993, and reply comments were to be 7 Because of the topography involved, certain counties are filed by July 14, 1993. WHAG-TV contends that according to 47 divided into more than one sampling unit. Also, in certain C.F.R. §76.7(d), comments on petitions for special relief must be circumstances, a station may have its home county assigned to filed within 20 days of the date of public notice. Under these an ADI even though it receives less than a preponderance of the circumstances, WRC©s pleading would have been due on July 1, audience in that county. For a more complete description of 1993. WRC©s Informal Objection is dated August 31, 1993. We how counties are allocated, see Arbitron©s Description of Meth odology.

8629 DA 95-1700 Federal Communications Commission Record 10 FCC Red No. 17

(I) whether the station, or other stations located in tor concerns viewing patterns in the cable commu the same area, have been historically carried on the nity in cable and noncable homes. Audience data cable system or systems within such community; clearly provide appropriate evidence about this fac (II) whether the television station provides coverage tor. In this regard, we note that surveys such as those or other local service to such community; used to demonstrate significantly viewed status could be useful. However, since this factor requires us to (III) whether any other television station that is eli evaluate viewing on a community basis for cable and gible to be carried by a cable system in such commu noncable homes, and significantly viewed surveys nity in fulfillment of the requirements of this section typically measure viewing only in noncable house provides news coverage of issues of concern to such holds, such surveys may need to be supplemented community or provides carriage or coverage of sport with additional data concerning viewing in cable ing and other events of interest to the community; homes.10 i and (IV) evidence of viewing patterns in cable and 6. In adopting rules to implement this provision, the noncable households within the areas served by the Commission indicated that changes requested should be cable system or systems in such community.8 considered on a community-by-community basis rather than on a county-by-county basis and that they should be 4. The legislative history of this provision indicates that: treated as specific to particular stations rather than ap plicable in common to all stations in the market.11 The rules further provide, in accordance with the requirements where the presumption in favor of ADI carriage of the Act, that a station not be deleted from carriage would result in cable subscribers losing access to during the pendency of an ADI change request.12 local stations because they are outside the ADI in which a local cable system operates, the FCC may 7. Adding communities to a station©s ADI generally en make an adjustment to include or exclude particular titles that station to insist on cable carriage in those com communities from a television station©s market con munities. However, this right is subject to several sistent with Congress© objective to ensure that televi conditions: 1) a cable system operator is generally required sion stations be carried in the areas which they serve to devote no more than one-third of its activated channel and which form their economic market. capacity to compliance with the mandatory signal carriage obligations, 2) the station is responsible for delivering a good quality signal to the principal headend of the system, ***** 3) indemnification may be required for any increase in copyright liability resulting from carriage, and 4) the sys tem operator is not required to carry the signal of any [This subsection] establishes certain criteria which the station whose signal substantially duplicates the signal of Commission shall consider in acting on requests to any other local signal carried or the signals of more than modify the geographic area in which stations have one local station affiliated with a particular broadcast net signal carriage rights. These factors are not intended work. If, pursuant to these requirements, a system operator to be exclusive, but may be used to demonstrate that elects to carry the signal of only a single affiliate of a a community is part of a particular station©s market.9 broadcast network, it is obliged to carry the affiliate from within the ADI whose is closest to the 5. The Commission provided guidance in its Report and principal headend of the cable system. 13 Accordingly, based Order in MM Docket 92-259, supra, to aid decision making on the specific circumstances involved, the addition of in these matters, as follows: communities to a station©s ADI may guarantee it cable carriage and specific channel position rights; simply pro For example, the historical carriage of the station vide the system operator with an expanded list of must- could be illustrated by the submission of documents carry signals from which to choose, i.e., when it has used listing the cable system©s channel line-up (e.g., rate up its channel capacity mandated for broadcast signals cards) for a period of years. To show that the station carriage, or determined which of duplicating network affili provides coverage or other local service to the cable ated stations are entitled to carriage priority. 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 MARKET FACTS AND ARGUMENTS OF THE PARTIES community in terms of mileage. Coverage of news or 8. The communities at issue in this proceeding are lo other programming of interest to the community cated in ten counties covering four states and comprising could be demonstrated by program logs or other three ADIs. 14 WHAG-TV©s ADI of Hagerstown, Maryland descriptions of local program offerings. The final fac consists solely of Washington County. In its petition,

8 Communications Act of 1934, as amended, §614(h)(l)(C)(ii), absent evidence that such data is not fairly reflective of viewing 47 U.S.C. §534(h)(l)(C)(ii). in the actual communities in question, we accept such data as 9 H.R. Rep. No. 628, 102d Cong., 2d Sess. 97 (1992). probative in cases of this type. 10 Id. at 2977 (emphasis in original). tz 47 C.F.R. §76.59. 11 8 FCC Red at 2977, n.139. Viewership data cited herein is 13 8 FCC Red at 2981. from Arbitron, Television County Coverage reports. This data is 14 See Appendices A and B. county data, rather than community-specific data. However,

8630 10 FCC Red No. 17 Federal Communications Commission Record DA 95-1700

WHAG-TV asks the Commission to modify its ADI so that in the Washington, D.C. ADI than is Washington, D.C. the communities referenced in Appendix A may also be itself. With respect to Garrett County, the petitioner main included in the Hagerstown, Maryland ADI for purposes of tains that because of Garrett©s rural nature and the fact that the cable television mandatory broadcast signal carriage it is the westernmost county in Maryland, there are no rules. The counties containing the communities here in Maryland stations, other than WHAG-TV, which can de question are contiguous to the Hagerstown, Maryland ADI, liver Maryland state news to Garrett County .residents. The with the exception of Garrett County, Maryland; Hamp petitioner further states that non-profit organizations in a shire County, West Virginia; and Frederick County, Vir number of the counties use WHAG-TV©s Community Bul ginia, which lie to the west and southwest of the letin Board and its 5-minute "Today In The Valley" televi Hagerstown ADI. sion program, which appears each weekday from 8:55 -9:00 9. WHAG-TV asserts that it satisfies each of the four a.m., to promote local, volunteer fund raising activities and market modification criteria set forth in the 1992 Cable to inform citizens of program opportunities.© WHAG-TV Act and the Commission©s rules. With respect to the his also notes that it airs local telethons in some of the ten torical carriage factor, WHAG-TV identifies those cable counties identified in its petition. systems serving each of the ten counties, which do not also 12. As to the issue of whether other stations entitled to serve portions of Washington County, and states that it has mandatory carriage provide local coverage to the commu been carried on most of the systems since at least 1972, and nities in question, WHAG-TV asserts that some of the on some of the systems since 1977 or 1984.1S Communities are either beyond or on the outskirts of the 10. WHAG-TV maintains that it provides coverage to predicted Grade B contour provided by the NBC affiliate most of the Communities served by the relevant systems. qualified for carriage. Specifically, with respect to those WHAG-TV submits a contour map showing that it places a counties included in the petition that are currently part of Grade B contour over virtually all of the Communities and the Washington D.C. ADI, WHAG-TV states that Allegany, a Grade A or City Grade contour over many of the Com Maryland; Franklin, Pennsylvania; Morgan, West Virginia; munities or portions thereof. Specifically, the petitioner and Hampshire, West Virginia are beyond the predicted indicates that its Grade B contour entirely covers the fol Grade B contour provided by WRC, the NBC affiliate lowing seven counties: Frederick, Maryland; Franklin, entitled to carriage, and that Jefferson, West Virginia and Pennsylvania; Fulton, Pennsylvania; Berkeley, West Vir Frederick, Virginia lie on the outskirts of WRC©s predicted ginia; Jefferson, West Virginia; Morgan, West Virginia; and Grade B contour. WHAG-TV recognizes that most Wash Frederick, Virginia. The petitioner explains that it places a ington, D.C. stations place Grade B contours over Fred Grade B contour over virtually all of Hampshire County, erick, Maryland and that WRC©s predicted Grade B West Virginia, including Romney, the largest city in Hamp contour covers a portion of Berkeley, West Virginia. How shire County, and over all of Allegany County, Maryland, ever, WHAG-TV claims that the Washington D.C. stations but for a small tip in the westernmost corner.16 The only generally do not cover news of local importance to the county included in its request over which WHAG-TV does eight counties included in the Washington D.C. ADI be not provide any Grade B contour coverage is Garrett cause of "the geographic distance and the multiplicity of County, Maryland.17 The petitioner states that it places a areas serviced by these highly urban stations". The peti Grade A contour or City Grade over four counties-Fulton, tioner adds that Fulton, Pennsylvania, which is part of the Pennsylvania; Berkeley, West Virginia; Jefferson, West Vir Johnstown-Altoona, Pennsylvania ADI, lies on the very ginia; and Morgan, West Virginia. WHAG-TV also indicates fringe of the Grade B contour provided by WJAC, the that it places a Grade A contour or City Grade over at least must-carry NBC affiliate. some portion of three other counties Frederick, Maryland; 13. With regard to viewing patterns in the ten counties, Franklin, Pennsylvania; and Frederick, Virginia. the petitioner submits 1992-1993 Arbitron coverage data 11. In addition, WHAG-TV avers that its daily local news which, in some instances, indicate that WHAG-TV is the broadcasts cover news stories specific to the counties con most watched NBC affiliate. However, the viewership data taining the communities here in question. In support of WHAG-TV provides is not consistent from county to coun this contention, the petitioner submits an affidavit of Hugh ty. For some counties, the petitioner submits county cov J. Breslin, III, the General Manager of WHAG-TV. The erage figures while, for other counties, it supplies either affidavit cites, on a county-by-county basis, examples of cable county coverage data or noncable county coverage stories covered by WHAG-TV concerning events in the ten data or figures for both noncable county coverage and counties, followed by an assertion that the Washington, county coverage. We note that WHAG-TV did not provide D.C. stations "did not cover these stories, or did not cover any viewership data with respect to one county, Frederick them with the same depth as did WHAG-TV". The peti County, Virginia. According to the most recent Arbitron tioner points out that its city of license, Hagerstown, Mary county coverage figures, which are a measure of viewing land, is geographically closer to the communities at issue patterns for both cable and noncable households, WHAG-

15 WHAG-TV does not provide information with respect to ate, similarly, does not place a Grade B contour over Garrett historic carriage in Oldtown, Maryland; and Falling Water and County. WHAG-TV states that WBOY-TV, in Clarksburg, West Inwood, West Virginia. See Appendix A. Virginia places a predicted Grade B contour over the western 16 WHAG-TV©s Grade B contour appears to cover all of the portion of Garrett County. We note that WJAC, the NBC communities in question in Allegany County with the exception affiliate in the Johnstown-Altoona, Pennsylvania ADI, provides of Frostburg, Lonacaning, Luke, Westernport, and the neighbor Grade B contour coverage to approximately half of Garrett ing unincorporated areas. All of the communities in question in County, and achieves substantial viewership as indicated in Hampshire County also appear to be encompassed by the sta Appendix C. tion©s Grade B contour. 17 Although Garrett is part of the Pittsburgh, Pennsylvania ADI, WHAG-TV asserts that WPXI, the Pittsburgh NBC affili

8631 DA 95-1700 Federal Communications Commission Record 10 FCC Red No. 17

TV is the most watched NBC affiliate in the following TV covers with news and local affairs programming, counties: Allegany, Maryland; Franklin, Pennsylvania; Ful WHAG-TV is doing exactly what Congress contemplated ton, Pennsylvania; and Morgan, West Virginia.18 However, when it enacted the market modification provisions of the WHAG-TV receives low viewership shares in both Jef 1992 Cable Act. WHAG-TV asserts that Time Warner and ferson, West Virginia and Frederick, Virginia and the low CVC are pleading form over substance by arguing that the est shares of any NBC affiliate in Frederick, Maryland.19 petition should be denied because it lists cable systems by The petitioner achieves viewership shares relatively com county rather than by community. WHAG-TV states that parable to the must-carry NBC affiliate in Garrett, Mary the fact that it seeks the inclusion of a large number of land; Berkeley, West Virginia; and Hampshire, West communities in its ADI and that it chose, for administra Virginia.20 We note that in Garrett, WHAG-TV receives tive convenience, to group these, communities by cable slightly higher viewership shares than WPXI, the must- systems, and then cable systems by counties, has nothing to carry NBC affiliate from the Pittsburgh, Pennsylvania AOI, do with the substance of its petition and does not render it but significantly lower shares than WJAC, the NBC affiliate invalid. The petitioner insists that it listed the cable com in the Johnstown-Altoona, Pennsylvania ADI.21 munities it sought to add to its ADI in the most logical 14. In addition to the evidence presented with respect to order possible and that nothing in the Commission©s rules the four market modification factors, WHAG-TV also raises requires that the petition adhere to any particular form of other considerations in support of its petition. First, pleading. WHAG-TV also notes that viewership data is only WHAG-TV states that it looks to the ten counties for local available on a county wide basis. The petitioner states that advertising revenues and identifies business retailers in had it listed each cable community separately and pre some of the counties that advertise on the station.22 Second, sented its evidence under the four-prong test for each with respect to some counties, WHAG-TV states it will community, neither the evidence nor the arguments would open or has already opened an office in the county or has have been any different. WHAG-TV maintains that it needs assigned a full-time news reporter to the county. Third, to add a substantial number of communities to its ADI WHAG-TV maintains that it spent a total of $67,020 in because it is licensed to a single county ADI. The peti 1992 in advertising the station on county radio stations in tioner also contends that the opponents do not raise any Frederick and Allegany Counties, Maryland and in Frank substantive arguments to rebut its request. WHAG-TV lin County, Pennsylvania. points out that neither Time Warner nor CVC dispute any 15. In their oppositions to WHAG-TV, Time Warner and of the facts presented in its petition or argue that the facts CVC argue that neither Congress nor the Commission which are presented on a county wide basis do not apply to intended for entire counties to be added to an ADI. The the communities served by the cable systems. opponents contend that both the 1992 Cable Act and the 17. WRC opposes WHAG-TV©s petition with respect to Commission©s rules require that ADI petitions be framed the eight counties included in the Washington, D.C. ADI. in terms of addressing individual communities, not entire WRC insists that the petition should be denied because it counties. They assert that WHAG-TV©s petition should be "greatly exceeds the scope of market adjustments that are denied because it seeks the addition of ten counties from appropriate under the Commission©s market modification three ADIs and is drafted on a county wide, as opposed to rules". Like Time Warner and CVC, WRC contends that an individual community, basis. The opponents point out the Commission is authorized to make market modifica that the ten counties contain at least 55 different cable tions on a community-by-community basis and that communities. Time Warner and CVC argue that the peti WHAG-TV©s petition should be denied because it asks the tioner would have the Commission essentially return to the Commission to make "wholesale changes" to the station©s former 35 mile zone market definition to determine com ADI on a county-by-county basis. mercial television station must-carry status. They maintain 18. WRC further argues that the petition fails on the that WHAG-TV is attempting to use the Commission©s merits. WRC maintains that while it may be possible for a special relief provisions, not to add specific communities to petitioner to justify adding an entire county to its ADI by its ADI, but rather, to a new ADI where none exists. providing the requisite information to support relief in 16. In response, the petitioner argues that by seeking to each community in the county, WHAG-TV has not made include in its ADI those cable communities that have such a showing in this case. WRC asserts that the "petition historically carried its signal and communities that WHAG- provides no community-specific information in support of

18 See Appendix C. only county for which WHAG-TV does not provide any evi 19 Id. dence concerning advertising revenues or advertising businesses 20 Id. is Morgan County, West Virginia. 21 Id. 23 The affidavit of Hugh J. Breslin, III, General Manager of 22 Specifically, WHAG-TV states that business retailers in WHAG-TV, indicates that WHAG-TV planned to open an office Frederick County, Maryland earned the station over $170,000 in in Frederick County, Maryland in 1993 to provide daily local advertising revenue in 1992, representing 9.1 percent of WHAG- news coverage, advertising services and commercial production TV-©s local advertising revenue. The petitioner further asserts facilities for the County. In his affidavit, Mr. Breslin also states that retailers in Allegany County, Maryland generated $196,741 that WHAG-TV opened a sales office in Allegany County in in advertising revenue, representing approximately 10.5 percent 1981 to service business retailers and expanded this office in of the station©s local advertising revenue. WHAG-TV also iden 1987 to include a news bureau and full-time news reporter. tifies specific retailers in the following counties that advertise According to the petitioner, WHAG-TV provides daily news on the station: Garrett, Maryland; Franklin, Pennsylvania; Ful coverage of Garrett County events through the station©s ton, Pennsylvania; Berkeley, West Virginia; Jefferson, West Vir Allegany County news bureau. WHAG-TV also asserts that it ginia; Frederick, Virginia; and Hampshire, West Virginia. The serves Franklin and Fulton Counties, Pennsylvania and Berke ley County, West Virginia with daily local news coverage by assigning full-time news reporters to these counties.

8632 10 FCC Red No. 17 Federal Communications Commission Record DA 95-1700

its request" and, instead, consists of "broad-brush state the Commission to take this absence of evidence as an ments about each county." WRC contends that the peti admission by WRC that the station does not provide ade tioner©s showing with regard to local service is insufficient quate local service to the communities at issue. to support its request to expand its ADI. WRC argues, for instance, that listing a handful of local stories broadcast to Frederick, Maryland by WHAG-TV over a two month ANALYSIS AND DECISION period, without providing information concerning the 21. We shall grant WHAG-TV©s petition with respect to length or scope of the stories, fails to demonstrate a level of all of the communities in question except for those located local coverage that would justify granting the petition. in Garrett County, Maryland. The petitioner has made a WRC also argues that, although WHAG-TV seeks to add all persuasive case that the communities at issue, other than of the communities in the given counties to its ADI, the those in Garrett County, are logically part of WHAG-TV©s local coverage information the, station provides generally market for purposes of the cable television mandatory relates to only one or some of the communities in the broadcast signal carriage rules under the standards set forth counties. in §614(h) of the Communications Act. At the outset, we 19. As to the issue of viewing patterns, WRC points out note that while we consider requests for ADI modifications that the petitioner did not provide Arbitron data for both on a community-by-community basis, petitioners are not cable and noncable homes with respect to each county. limited in the number of communities for which modifica WRC contends that, since the petitioner is required to tion may be sought, provided that the communities in provide this information, its request is "patently deficient" question are specifically identified and appropriate evi for each county for which it failed to provide both sets of dence is submitted. In this case, WHAG-TV has identified data. WRC also maintains .that WHAG-TV has never the communities it seeks to have added to its ADI, and has sought or obtained "significantly viewed" status in any of submitted evidence for evaluation. The fact that the speci the counties at issue and suggests that the petitioner may fied communities are grouped according to county in the not achieve levels of viewing sufficient to entitle it to such petition is immaterial. status in many of the counties. Finally, WRC claims that 22. WHAG-TV has presented evidence with respect to all the petitioner failed to provide sufficient information re of the Communities, excluding those in Garrett County, garding the coverage provided by stations in ©the Washing that its request for market modification complies with the ton, D.C. ADI. Specifically, WRC argues that assertions four statutory elements. We note, too, that Hagerstown, made in an affidavit by the general manager of WHAG-TV Maryland, WHAG-TV©s city of license, is geographically that the Washington, D.C. stations did not cover certain closer to most of the communities in question than is stories or did not cover them with the same depth as did Washington, D.C., WRC©s community of license. WHAG- the petitioner are insufficient to prove that the Washing TV has demonstrated a long history of carriage on the ton, D.C. stations do not provide local service. cable systems serving all but three of the communities 20. In response, WHAG-TV reiterates that it needs to identified in its petition.24 In addition, with the exception expand its ADI because the Hagerstown, Maryland ADI of Garrett County, and a small portion of Allegany County, currently consists of only one county. The petitioner con WHAG-TV has shown that it provides Grade B contour tends that, without relief, it will not even be eligible for coverage to all of the communities in question. In fact, mandatory carriage on cable systems operating only a few WHAG-TV states that it provides Grade A contour or City miles from its transmission site. In addition, WHAG-TV Grade coverage to a number of the counties or portions contends that it is not required to separately demonstrate a thereof. We have previously stated that the presence of a need for carriage in each community in every county Grade B contour is indicative of coverage or local service requested. The petitioner argues that WRC©s proposed in a community and is sufficient to satisfy the second factor evidentiary standard, requiring that WHAG-TV make a of the four-prong test.25 Thus, we conclude that the peti separate showing under the four-prong test for each and tioner satisfies the coverage or local service requirement in every community of every county requested, was not con those communities covered by WHAG-TV©s Grade B con templated by the statute and would be impossible to meet. tour. The petitioner explains that permitting it to add to its ADI 23. It appears that other stations qualified for carriage only those communities in a given county for which it has offer coverage to the communities in question. However, made a specific showing of local programming, and not we do not believe that Congress intended for the third allowing it to include other communities within the same criterion to operate as a bar to a station©s ADI claim county, would have no practical effect in cases where a whenever other stations could also be shown to serve the single, fully integrated cable system serves the entire coun communities at issue. Rather, we believe that this criterion ty. The petitioner also contends that WRC©s standard was intended to enhance a station©s claim where it could be would, conceivably, require WHAG-TV to provide ratings shown that other stations do not serve the communities at data on a community-by-community basis which would be issue. In this case, because other stations do appear to serve virtually impossible and prohibitively expensive to do. Fi the communities in question, this enhancement factor does nally, the petitioner asserts that WRC, itself, does not offer not appear applicable. With respect to the viewership issue, any evidence that it provides local service to the commu the most recent Arbitron county coverage figures indicate nities identified in WHAG-TV©s petition. WHAG-TV urges that WHAG-TV achieves viewing shares greater than or comparable to the must-carry NEC affiliate in a number of the counties.26 In those counties, with the exception of

24 See Appendix A. displays combined off-air and cable audience data. We have also 25 8 FCC Red at 2977. See also paragraph 5, supra. reviewed the disaggregated data from those counties where it is 26 See paragraph 13, supra, and Appendix C. Appendix C available. As would be expected, in those areas closest to Wash-

8633 DA 95-1700 Federal Communications Commission Record 10 FCC Red No. 17

Garrett, Maryland, where WHAG-TV receives relatively Frederick County in Virginia.31 We further find, that grant low viewership shares, the combination of other factors, of WHAG-TV©s petition with respect to the communities in such as historical carriage and coverage or local service, question in Garrett County, Maryland is not in the public makes the case for inclusion of the communities in interest. WHAG-TV©,s ADI. 27. Accordingly, IT IS ORDERED, pursuant to §614 of 24. As noted above, the petitioner does not provide the Communications Act of 1934, as amended (47 U.S.C. Grade B contour coverage to Garrett County and to a §534), and §76.59 of the Commission©s Rules (47 C.F.R. small portion of Allegany County. In the cases of the §76.59), that the petition for special relief filed May 13, Allegany County communities,27 we believe that because 1993 by Great Trails Broadcasting Corporation is GRANT other factors weigh in favor of granting WHAG-TV©s mar ED to the extent indicated in paragraph 26, supra, and in ket modification request, the absence of Grade B contour all other respects IS DENIED. WHAG-TV shall notify the coverage over these communities should not prevent the relevant cable systems in writing of its carriage and channel communities from being included in WHAG-TV©s ADI. position elections, (§§76.56, 76.57, 76.64(f) of the Commis For one, the petitioner has demonstrated a history of car sion©s Rules), within thirty (30) days of the release date of riage on cable systems serving the area. Regarding the issue this Memorandum Opinion and Order. The affected cable of other station coverage, the petitioner asserts that no systems shall come into compliance with the applicable Washington, D.C. station places a Grade B contour over rules within sixty (60) days of such notification. any of Allegany County, which is part of the Washington, 28. This action is taken pursuant to authority delegated D.C. ADI. In addition, we note that WRC does not appear by §0.321 of the Commission©s Rules. to provide local programming to Allegany as evidenced by the fact that the station is not even listed in the 1993-1994 FEDERAL COMMUNICATIONS COMMISSION Arbitron county coverage reports. According to the most recent Arbitron county coverage figures, WHAG-TV is the most-watched NBC affiliate in Allegany County.28 25. Turning to Garrett County, we find that the peti tioner satisfies only one of the four statutory factors. William H. Johnson WHAG-TV has demonstrated a history of carriage on the cable system serving this county. However, the petitioner©s Deputy Chief, Cable Services Bureau Grade B contour does not cover any of Garrett County. Although Garrett County is located in Maryland, it is part of the Pittsburgh, Pennsylvania ADI. WHAG-TV argues that it is the only Maryland station which can deliver Maryland state news to the residents of Garrett County. However, we do not find this argument compelling in light of the viewership patterns of Garrett County residents. Viewership data indicate that a community of interest ex ists between Garrett County and the Johnstown-Altoona, Pennsylvania ADI. The most recent Arbitron viewership figures reveal that WJAC, the NBC affiliate in the Johns town-Altoona, Pennsylvania ADI, is the most watched NBC station, by far, in Garrett County.29 While WPXI, the must- carry NBC affiliate in Garrett County, receives a 3 share and WHAG-TV garners a 4 share, WJAC achieves an over whelming 12 share.30 These figures suggest that Garrett County is not logically part of WHAG-TV©s market for purposes of the mandatory broadcast signal carriage rules.

ORDER 26. In view of the foregoing, we find that grant of WHAG-TV©s petition with respect to the communities in question in the following counties is in the public interest: Frederick and Allegany Counties in Maryland; Franklin and Fulton Counties in Pennsylvania; Berkeley, Jefferson, Morgan and Hampshire Counties in West Virginia; and

ington, D.C., the Washington (or ) stations tend to 31 The Frederick, Maryland; Allegany, Maryland; Franklin, have somewhat higher over-the-air than cable audience and in Pennsylvania; Berkeley, West Virginia; Jefferson, West Virginia; those areas more©distant their over-the-air audience declines. In Morgan, West Virginia; Hampshire, West Virginia; and Fred no situation, however, does this information persuade us that a erick, Virginia communities at issue also remain within the different outcome would be warranted. Washington, D.C. ADI. The Fulton County, Pennsylvania com 27 See note 16, supra. munities at issue also remain within the Johnstown-Altoona, 28 See Appendix C. Pennsylvania ADI. 29 Id. . 30 Id. Over the air WJAC has a 23 share .of the audience.

8634 10 FCC Red No. 17 Federal Communications Commission Record DA 95-1700

Appendix A

Historic County Cable System Carriage Communities Maryland:

Frederick Frederick 1972 Frederick, Middletown, Walkersville, Cablevision Inc. Thurmont, Brunswick, Emmitsburg, and unincorporated Frederick County

Allegany TCI Cablevision 1972 Cumberland, Bowling Green, Cresaptown, of Maryland Eckhart, La Vale, Mount Savage, Potomac Park, and unincorporated areas of Allegany County CMA Cablevision 1972 Frostburg, Lonacaning, Luke, Associates VII Westemport, and unincorporated areas of Allegany County

Oldtown Community Oldtown Systems, Inc

Garrett Triax Cablevision 1984 Oakland, Mountain Lake Park, and unincorporated areas of Garrett County Pennsylvania:

Franklin Warner Cable of 1972 Chambersburg, Shippensburg, and Chambersburg unincorporated areas of Franklin County

Cumberland Valley 1972 Greencastle and unincorporated areas of Cable TV Franklin County

TV Cable of 1972 Waynesboro, Mont Alto, Rouzerville, Waynesboro Wayne Heights, and unincorporated areas of Franklin County

CMA XI 1972 Mercersburg and unincorporated areas of Franklin County

Fulton CMA XI 1972 McConnellsburg and unincorporated areas of Fulton County

8635 0.\ «>5-1700 Federal Communications Commission Record 10 FCC Red No. 17

Historic County Cable System Communities

West Virginia:

Berkeley Warner Cable 1972 Martinsburg and unincorporated areas of of Martinsburg Berkeley County TV Cable of Inwood Inwood

Berkeley Cable Falling Water Communications

Jefferson C/R TV Cable 1972 Charles Town, Ranson, Shepherdstown, Harpers Ferry, and unincorporated areas of Jefferson County

Morgan Tele-Media Corp 1972 Berkeley Springs and unincorporated portions of Morgan County

Hampshire TCI of Maryland 1972 Romney and unincorporated portions of Hampshire County CMA Cablevision 1977 Augusta and unincorporated portions of Associates VII Hampshire County

Valley Cable 1977 Capon Bridge and unincorporated portions of Hampshire County

Virginia:

Frederick Adelphia Cable 1977 Winchester and unincorporated portions of Frederick County

8636 10 FCC Red NO. i? Federal Communications Commission Record DA 95-noo

Appendix B

Washington, D.C. ADI:

Frederick County, MD Allegany County, MD Franklin County, PA Berkeley County, WV Jefferson County, WV Frederick County,VA Morgan County, WV Hampshire County, WV

Pittsburgh, PA ADI:

Garrett County, MD

Johnstown-Altoona, PA ADI:

Fulton County, PA

8637 DA 95-1700 Federal Communications Commission Record 10 FCC Red No. 17

Appendix C

Arbitron Television Countv Coverage Fitmres1 1993-1994*

Total Net Countv and Station Share Circulation (1) Frederick County, MD WHAG-TV (NEC, Ch. 25), Hagerstown, MD 1 16 WRC-TV (NEC, Ch. 4), Washington, DC 11 70 WMAR (NBC, Ch. 02), Baltimore, MD 8 56

(2) Allegany County, MD WHAG-TV (NBC, Ch. 25), Hagerstown, MD 12 78 WJAC (NBC, Ch. 6), Johnstown-Altoona, PA 1 5

(3) Garrett County, MD WHAG-TV (NBC, Ch. 25), Hagerstown, MD 4 40 WPXI (NBC, Ch. 11), Pittsburgh, PA 3 26 WJAC (NBC, Ch. 6), Johnstown-Altoona, PA 12 80

(4) Franklin County, PA WHAG-TV (NBC, Ch. 25), Hagerstown, MD 8 50 WRC-TV (NBC, Ch. 4), Washington, DC 4 35 WGAL (NBC, Ch. 8), Harrsbg-York- 7 45 Lancast-Lebanon, PA WMAR (NBC, Ch. 2), Baltimore, MD 4 16 WJAC (NBC, Ch. 6), Johnstown-Altoona, PA 1 5

(5) Fulton County, PA WHAG-TV (NBC, Ch. 25), Hagerstown, MD 12 38 WJAC (NBC, Ch. 6), Johnstown-Altoona, PA 2 24 WGAL (NBC, Ch. 8), Harrsbg-York- 2 24 Lancast-Lebanon, PA WMAR (NBC, Ch. 2), Baltimore, MD 4

(6) Berkeley County, WV WHAG-TV (NBC, Ch. 25), Hagerstown, MD 8 37 WRC-TV (NBC, Ch. 4), Washington, DC 11 76 WMAR (NBC, Ch. 2), Baltimore, MD 1 8

8638 10 FCC Red NO. 17 Federal Communications Commission Record DA 95-noo

(7) Jefferson County, WV WHAG-TV (NBC, Ch. 25), Hagerstown, MD 2 18 WRC-TV (NBC, Ch. 4), Washington, DC 14 80 WMAR (NBC, Ch. 2), Baltimore, MD 2 12 (8) Morgan County, WV WHAG-TV (NBC, Ch. 25), Hagerstown, MD 11 74 WRC-TV (NBC, Ch. 4), Washington, DC 9 45

(9) Hampshire County, WV WHAG-TV (NBC, Ch. 25), Hagerstown, MD 5 20 WRC-TV (NBC, Ch. 4), Washington, DC 6 30 WJAC (NBC, Ch. 6), Johnstown-Altoona, PA 2 8 WXIA (NBC, Ch. 11), , GA 1 8

(10) Frederick County, VA WHAG-TV (NBC, Ch. 25), Hagerstown, MD 2 18 WRC-TV (NBC, Ch. 4), Washington, DC 11 71 WMAR (NBC, Ch. 2), Baltimore, MD 1 5

* Arbitron©s 1993-1994 Television County Coverage (Standard/Fringe- including both cable and non-cable viewing): Maryland/District of Columbia, Pennsylvania, West Virginia, and Virginia/District of Columbia.

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