Federal Communications Commission DA 96-440

Before the ~'ederal Communications Commission Washington, D.C. 20554

In Re: ) ) Channel 17 Associates, Ltd. ) CSR-4174-A Tuscaloosa, ) ) For Modification of Television Broadcast ) Station WDBB's ADI )

MEMORANDUM OPINION AND ORDER

Adopted: March 22, 1996 Released: April 3, 1996

By the Cable Services Bureau:

INTRODUCTION

· 1. Channel 17 Associates, Ltd., licensee of television broadcast station WDBB (Ch. 17-­ FOX), Tuscaloosa, Alabama ["WDBB "] has filed the captioned petition seeking to include certain communities in the Alabama counties of Lamar, Walker, Fayette, Pickens, Greene, Hale, Bibb, Marengo, Perry, and Sumter within the Tuscaloosa, Alabama "area of dominant influence" ["ADI"] for purposes of the mandatory broadcast signal carriage rules. Oppositions were filed by Birmingham Television Corporation ["WBMG"], licensee of television broadcast station WBMG (Ch. 42-CBS}, Birmingham, Alabama, and by WTTO, Inc. ["WTTO"], licensee of television broadcast station WTTO (Ch. 21-FOX), Birmingham, Alabama. WDBB filed a consolidated reply to the oppositions.

1 The specific cable communities arfected by Lhis pelilion are: (I) l"fom Lhe Birmingham. Alabama ADI: Curry, Berry, Winfield, Brillianl. and lhe Cily of l•'ayelle (Fayelle Counly); ; Eutaw, Boligee, and l•'orward (Greene Counly); Akron and Greensboro (Hale Counly); Cenlreville and Brenl (Bibb Counly); and Oakman (Walker Counly); (2) l•'rom lhe Montgomery Selma, Alabama ADI: Linden and Demopolis (Marengo County); and Marion (Perry Counly); (3) l•'rom Lhe Columbus 'l'upelo, Mississippi ADI: Kennedy. Vernon, Beaverlon, Sulligenl, and Millporl (Lamar Counly); and Aliceville, Carrolllon, Pickensville, Gordo, and lterorm (Pickens Counly); and (4) l•'rom lhe Meridian, Mississippi i\Dl: Livingslon and York {Sumler Counly).

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BACKGROUND

2. Pursuant to §614 of the Communications Act and implementing rules adopted by the Commission in its Report and Order in MM Docket 92-259,2 commercial television broadcast stations are entitled to assert mandatory carriage rights on cable systems located within the station's market. A station's market for this purpose is its "area of dominant influence" or ADI as defined by the Arbitron audience research organization.3 An ADI is a geographic market designation that defines each television market exclusive of others, based on measured 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 viewing hours in the county. For purposes of this calculation, both over-the-air and cable television viewing are included.4

3. Under the Act, however, the Commission is also directed to consider changes in ADI areas. Section 614(h)(l)(C) provides that the Commission may:

with respect to a particular television broadcast station, include additional communities within its television market or exclude communities from such station's teleVision market to better effectuate the purposes of this section.

In considering such requests, the Act provides that:

the Commission 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 provides coverage or other local service to such community;

--··- . ------2 8 F'CC Red 2965. 2976-2977 (1993).

3 Seclion 76.55(e) of Lhe Commission's Rules provides lhal Lhe ADls lo be used for purposes of lhe inilial implemenlalion of the mandatory carriage rules are those published in Arbitron's 1991 1992 ie/evision Jlarlre/ Cu/de

4 13ecause of the topography involved, cerlain counties are divided into more lhan one sampling unil. Also, in certain circumslances. a slalion may have ils home counly assigned lo an ADI even lhough il receives less lhan a preponderance of lhe audience in lhal counly. Par a more complele descriplion of how counlies are allocaled. seeArbilron's /}esr:rip/ion of Jle/l!odo/ogy

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(III) whether any other television station that is eligible to be carried by 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.5

4. The legislative histoiy of ·this provision indicates that:

where the presumption in favor of ADI carriage would result in cable subscribers losing access to local stations because they are outside the ADI in which a local cable system operates, the FCC may make an adjustment to include or exclude particular communities from a television station's market consistent with Congress' objective to ensure that television stations be carried in the areas which they serve and which fonn their economic market. * * * * * [This subsection] establishes certain criteria which the Commission shall consider in acting on requests to modify the geographic area in which stations have signal carriage rights. These factors are not intended to be exclusive, but may be used to demonstrate that a community is part of a particular station's · market.6

5. The Commission provided guidance in its Report and Order in MM Docket 92-259, supra, to aid decision making in these matters, as follows:

For example, the historical carriage of the station could be illustrated by the submission of documents 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 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 tenns of mileage. Coverage of news or other programming of interest to the community could be demonstrated by

5 Communications Acl of 1934, as amended, §614(h)(l)(C)(ii). 47 U.S.C. s534(h)(l)(C)(ii).

6 11.R. Rep. No. 628. 102d Cong .. 2d Sess. 97 (1992).

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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. However, since this factor requires us to evaluate viewing on a community basis for cable and noncable homes, and significantly viewed surveys typically measure viewing only in noncable households, such surveys may need to be supplemented with additional data concerning viewing in cable homes.7

6. In adopting rules to implement this provision, the Commission indicated that changes requested should be considered on a community-by-community basis rather than on a county-by­ county basis and that they should be treated as specific to particular stations rather than applicable in common to all stations in the market. 8 The rules further provide, in accordance with the requirements of the Act, that a station not be deleted from carriage during the pendency of an market area change request. 9

7. Adding communities to a station's market area generally entitles that station to insist on cable carriage in those communities. However, this right is subject to several conditions: 1) a cable system operator is generally required to devote no more than one-third of its activated channel 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 system operator is not required to carry the signal of any station whose signal substantially duplicates the signal of any other local signal carried or the signals of more than one local station affiliated with a particular broadcast network. If, pursuant to these requirements, a system operator elects to carry the signal of only a single affiliate of a broadcast network, it is obliged to carry the affiliate from within the market whose is closest to the principal headend of the cable system.10 Accordingly, based on the specific circumstances involved, the addition of communities to a station's market area may guarantee it cable carriage and specific channel position rights; simply provide the system operator with an expanded list

------·------7 8 [•'CC Red al 2977 (emphasis in original).

8 8 l"CC Red al 2977 n.139. Viewership dala cited herein is county dala. ralher than community· specific dala. llowever. absent evidence lhal such dala is nol fairly reflective or viewing in lhe aclual communities in question. we accepl such dala as probative in cases or lhis lype.

9 47 CSX §76.59.

10 8 l•'CC Red al 2981.

4202 Federal Communications Commission DA 96-440 of must-cany signals from which to choose, i.e., when it has used up its channel capacity mandated for broadcast signals carriage, or detennined which of duplicating network affiliated stations are entitled to carriage priority.

MARKET FACTS AND ARGUMENTS OF THE PARTIES

8. In its petition, WDBB argues that the counties it has requested to be added to its market, as well as Tuscaloosa County, make up an area known as "West Alabama." WDBB contends that the residents of these counties "look towards and often commute to" Tuscaloosa for school, work, and shopping. WDBB asserts that many of the communities sought to be added are not only geographically closer ti> Tuscaloosa than to Birmingham, but that Tuscaloosa is located between Birmingham and many of these communities.11 WDBB also cites to a study performed by the University of Alabama showing that for residents of Hale, Greene, Pickens, and Bibb Counties, Tuscaloosa generally ranks second or third as the county of employment.

9. WDBB also argues that the station meets the four statutoiy criteria for ADI modification with respect to the subject communities. ·With regard to historical carriage, WDBB asserts that it has been carried in each of the communities named in the petition, as early as 1985 in some communities, with the exception of Pickensville in Pickens County. Next, WDBB maintains that the station's predicted Grade B contour covers Pic~ens, Greene, Hale, Bibb, and Perry Counties almost in their entirety as well as significant portions of Fayette and Jefferson Counties. In addition, WDBB contends that its general and public service programming is directed towards the entire West Alabama region. WDBB lists its local news program (aired twice daily Monday through Friday) and "Good Morning Tuscaloosa," (aired weekday mornings) as evidence of the local nature of its programming. WDBB also provides evidence allegedly showing that although the organizations featured on "Good Morning Tuscaloosa" are based in Tuscaloosa, they provide outreach services to most of the counties in West Alabama.12 Petitioner notes that in addition to the public service programming which it has described, it also presents programming from the FOX network, and that it is the closest source of FOX programming in each of the subject counties, with the exception of Walker County. With regard to local viewing patterns, petitioner cites to 1992 Nielsen data, asserting that WDBB has substantial cable and non-cable viewership throughout the counties in question.

11 WDBB noles lhal. in comparing aclual lravel mileage from Tuscaloosa's cily .limils lo lhe counly lines as provided by lhe Alabama Highway Deparlmenl, Tuscaloosa is closer lhan lhe Cily of Birmingham lo the following counlies: Pickens. 17.7 miles vs. 62.9 miles; Greene, 15.0 miles vs. 59.4 miles; llale, 11.6 miles vs. 55.4 miles; li'ayelle, 29.0 miles vs. 78.0 miles; and Bibb. 15.1 miles vs. 19.9 miles.

12 SeePelilion. t:xhibil 8.

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10. As for the provision of local service by other stations, WDBB argues that because Tuscaloosa is substantially closer to the counties and communities currently in the Birmingham ADI, stations licensed to Birmingham are less likely to provide coverage of local interest matters. In addition, WDBB contends that West Alabama residents cannot receive the programming broadcast by Birmingham stations, especially FOX network programming, because they do not place a Grade B contour over most of the communities at issue.

11. In its opposition, WBMG argues that the petition should be denied because WDBB failed to provide community-specific evidence to justify its request. WBMG states that it focuses its opposition on Walker County although the flaws in the petition generally apply to all ten counties sought to be added. As an initial matter, WBMG notes that WDBB infers that Walker County is not considered a part of West Alabama, and therefore WDBB's discussions regarding the station's service to West Alabama do not apply to Walker County. In addition, WBMG contends that WDBB fails to provide Grade B service to Walker County, and that the station fails to provide evidence of programming specifically directed toward residents in that County. WBMG also argues that other than the community of Oakman, WDBB provides no evidence of historical carnage on other cable systems in Walker County. With regard to local viewing patterns, WBMG asserts that petitioner should have provided community-specific data rather than the county-wide Nielsen ratings. Finally, WBMG maintains that Walker County and the entire area are served by WBMG's news programming and other local services.

12. In its opposition, WTTO contends WDBB's petition is procedurally deficient because it is not community-specific and instead focuses on the area of West Alabama. WTTO first notes that WDBB is primarily a satellite of Station WTTO operating under a retransmission agreement with WTT0.13 As for the four statutory factors, WTTO argues that WDBB's evidence of historical carnage is irrelevant because WDBB did not show the penetration rates of the systems that have historically earned its signal. .W'ITO also contends that WDBB did not take into account the rural nature of the counties in which the cable communities are located and the impact this might have on the station's carnage history and ability to program for such communities. W'ITO asserts that WDBB's predicted Grade B contour does not totally cover any of the subject counties. Finally, WTTO argues that television viewers in most of the counties at issue look to Birmingham for ABC, CBS, and NBC programming, and that viewers have a choice of W'ITO or WDBB for FOX programming. Therefore, WTTO argues, WDBB's ratings are irrelevant to its petition. Finally, WTTO maintains that the Tuscaloosa ADI contains only one county because the one licensed to the ADI, WAFT-TV (Ch. 33, CBS), has a predicted Grade B contour which does not cover the entirety of any of the surrounding counties which are the subject of WDBB's petition.

13 11ut seeparagraph 14. infra

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13. WDBB filed a consolidated reply to the oppositions, maintaining that it has demonstrated that Tuscaloosa is a regional urban center which acts as the hub to surrounding rural counties of West Alabama and that neither WTTO nor WBMG have contested the facts which form the basis of its showing. WDBB replies that its petition lists the specific communities within each county which are the subject of its request and that its historic carriage evidence is on a community-by-community basis. In addition, petitioner argues that with regard . to the communities that are outside the station's Grade B contour, it has demonstrated the "shared similarities of needs and interests of the communities and counties at issue." Furthermore, WDBB maintains that a showing as to specific programming targeted for each individual community is ·not feasible in light of the small population of each community. Finally, WDBB responds to WTTO's historical carriage contention arguing that there is no basis for showing the relevance of cable penetration rates.

14. On August 25, 1995, WDBB filed a letter with the Commission stating that as of January 19, 1995, the license of Channel 17 was assigned to WDBB, and that while the station no longer rebroadcasts the signal of WTTO, it still broadcasts FOX network programming. Petitioner also notes that on June 28, 1995, the Commission granted WDBB's petition to have its signal declared "significantly viewed" in Bibb, Greene, Hale, and Marengo Counties in Alabama.

ANALYSIS AND DECISION

15. WDBB has provided sufficient evidence to justify its market modification request with respect to the cable communities noted above excepting those in Lamar and Walker Counties. The record indicates that the majority of the cable communities are logically part of WDBB's market for purposes of the cable television mandatory broadcast signal carriage rules although the inclusion factors vary from community to community. We first note that historical carriage weighs in the station's favor as· WDBB has been continuously carried in the most of the communities since as early as 1985.14 The fact that these cable operators have continuously carried WDBB demonstrates that the operators and their subscribers value the station and the

14 WDBB does nol provide evidence or hislorical carriage in lhe .community or Pickensville in Pickens County. llowever. il appears lhal Pickensville is nol currently served by a cable operalor. bul is wilhin lhe same geographic area as Carrolllon and Aliceville which are bolh served by lhe same cable syslem. See 7'elension anrf Cable fact.book Cable Vol. No. 63, 1995 Edition. al D· 43. Given lhe geographic proximily or Pickensville, combined wilh lhe evidence or historic carriage in lhe surrounding communilies and lhe slrong viewership in Pickens Counly. the lack or historic carriage in Pickensville does not warrant a denial or lhe pelilion wilh respecl lo lhis particular community.

We also agree with WDl31.l lhal cable penetralion rales should have no bearing when examining historical carriage as lhere is nol a surricienl nexus belween lhe two elemenls lo make a dirrerence in lhe markel modification analysis.

4205 Federal Communications Commission DA 96-440 service it provides. Because WDBB was operating as a satellite station during at least a portion of the time in question, some ambiguity exists as to whether this carriage reflects an interest (and market connection) with WDBB or with the parent station. Nevertheless, this factor weighs in WDBBs favor. With historical carriage in general support, the additional critical factors in this case involve WDBB's coverage of the cable communities and the viewership the station receives. The communities located in Greene, Bibb, and Hale counties are added to WDBB's market because the station places a Grade A or Grade B contour over virtually all of the communities and the counties. These same communities are also geographically closer to Tuscaloosa than they are to the population centers of either Birmingham or Montgomecy and the station also garners a 13 share in Hale and Greene Counties (compared to WTTO's 1 share and no share in the same counties) according to 1995 Neilsen data.15 Because during the relevant ratings periods both WDBB and WTTO were broadcasting programming from the same network, a comparison of the rating of the two stations provides evidence as to the shape of the markets in question. We recognize that WDBB captures only a 1 share in Bibb county compared to WTTO's 10 share. However, we believe that WDBB's Grade A or Grade B coverage over Bibb County, in addition to the station's positive showing with regard to geographic proximity and historical carriage, carries more weight than ratings in this instance. The cable communities in Pickens and Perry Counties are also be part of WDBB's market because they are either inside or within the fringe of the station's Grade B contour and Perry County is also geographically closer to the city of Tuscaloosa than the city of Montgomecy; WDBB also has a strong 9 share in Pickens County, the easternmost county in the Columbus-Tupelo ADl.16 We will modify WDBB's market to also include the cable communities in Fayette County because the station has a reportable viewership of a 2 share, compared to WTTO's 3 share, and the communities are geographically closer to Tuscaloosa. We note that the Fayette County communities are either inside or on the fringe of WTTO's Grade B contour, however, this fact by itself is not sufficient to deny WDBB's request in this instance particularly when historic carriage, viewership, and proximity weigh in WDBB's favor. Finally, we modify WDBB's market to include the communities in Marengo County as that station has slightly stronger ties to the area than WTTO. For example, WDBB is considered significantly viewed in this county and its Grade B contour touches the county line while WTTO's does not. Marengo County is also geographically closer to Tuscaloosa than to either Birmingham or Montgomecy.

15 We also note lhal, as argued by WT'l'O and WBMG. lhis viewing dala is based on counly wide ralher lhan community specific surveys. However. we have consislenlly held lhal absenl evidence Lhal such dala are nol fairly reflective of viewing in lhe aclual communities in question, we shall accepl such dala as probalive in cases of lhis lype.

16 We also nole Lhal WDBB obtained only a 1 share in Perry Counly compared lo a 5 share for WT'l'O in lhal same counly. We again believe Lhal lhe slalion's lack of ralings here is compensated by WDDD's historical carriage, Grade B coverage and proximity Lo Tuscaloosa.

W'l"l'O has noreporlable share in Pickens Counly according Lo Lhe 1995 Neilsen reporl.

4206 Federal Communications Commission DA 96-440

16. With respect to the third factor, we note that both WTTO and WBMG provide coverage of and programming to the communities in question. However, we do not believe that Congress intended the third criterion to operate as a bar to WDBB's ADI claim when other . stations like WTIO and WBMG serve the cable communities. Rather, we believe that this criterion was intended to enhance a station's claim where it could be shown that other stations do not serve the communities at issue. Under such circumstances, a denial of carriage rights to WDBB, as the claiming station, could deprive cable viewers in the subject communities of this broadcast service that provides local programming of interest. The enhancement factor weighs in favor .of inclusion for WDBB in the Sumter County cable community of Livingston because there is no network affiliate of the same type in the Meridian, MS ADI and the station exhibits evidence of viewership with a reported 3 share for the county.

17. We deny WDBB's petition with regard to the 6 communities residing in Lamar, and Walker Counties as the station has not adequately demonstrated that they are part of its market. While we recognize that WDBB has a history of cable carriage in these communities, this factor in and of itself does not overcome the lack of evidential support from the other statutory factors. In Lamar County, which is in the Columbus-Tupelo ADI, WDBB provides no Grade B coverage over the cable communities and does not have any reportable audience levels; WTTO, on the other hand, does exhibit some level of viewership with a 2 share for the county. We also deny WDBB's request to include the Walker County cable community of Oakman because the station does not place a Grade B contour over the county or the community and it also has no reportable ratings; in this instance, WTTO has a strong 10 share and Oakman is situated on the fringe of WTTO's Grade A contour.

ORDER

18. In view of the foregoing, we find that grant of WDBB's petition with respect to all the cable communities, except those located in Lamar and Walker Counties, is in the public interest.

19. Accordingly, IT IS ORDERED, pursuant to §614 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 petition for special relief filed December 10, 1993 by Channel 17 Associates, Ltd. IS GRANTED IN PART AND DENIED IN PART. This change shall be effective in accordance with the following schedule: Channel 17 Associates, Ltd. shall notify the relevant cable systems in question in writing of its carriage and channel position election (§§76.56, 76.57, and 76.64(f) of the Commission's Rules) within 30 days of the release date of this Memorandum Opinion and Order. The affected cable systems shall come into compliance with the applicable rules within 60 days of the above notice.

4207 Federal Communications Commission DA 96-440

20. 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

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