1. WTVT License, Inc.,1 Licensee of Television Broadcast Station WTVT

Home , WTOG, WTVT

Federal Communications Commission DA 96-761

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

In re: ) .

WTVT License, Inc. ) CSR-3975-A

Tampa Television, Inc. )

WTOG-TV, Inc. )

Tampa Bay Television, Inc. )

Petition for Special Relief for Modification ) of the ADIs of Stations WTVT, WFLA-TV, ) WTOG, and WFTS )

MEMORANDUM OPINION AND ORDER

Adopted: May 13, 1996 Released: May 29, 1996

By the Deputy Chief, Cable Services Bureau:

INTRODUCTION

1. WTVT License, Inc.,1 licensee of television broadcast station WTVT (Fox, Channel 13),2 Tampa, Florida ("WTVT"); Tampa Television, Inc., licensee of station WFLA- TV (NEC, Channel 8) Tampa, Florida ("WFLA-TV");3 WTOG-TV, Inc., licensee of station WTOG (Ind., Channel 44), St. Petersburg, Florida ("WTOG"); and Tampa Bay Television, Inc., licensee of station WFTS (ABC, Channel 28), Tampa, Florida ("WFTS")4 have filed the above-captioned petition, requesting that the Commission modify their respective television

© On April 25, 1995, counsel to WTVT notified the Commission that the licensee of the station changed since the petition was originally filed. The current licensee, WTVT License, Inc., is the successor to TVT License, Inc., which filed the instant petition for relief on June 24, 1993.

2 When this petition was filed, WTVT was a CBS affiliate. The Television and Cable Factbook, Stations Volume No. 63 (1995 Edition), indicates that WTVT is now a Fox affiliate.

1 Pursuant to information received from counsel for WFTS on May 5, 1995, the station, formerly a Fox affiliate, is now an ABC affiliate. 18020 Federal Communications Commission DA 96-761

markets for the purpose of establishing must-carry rights to include the Sarasota County, Florida communities of Sarasota, Venice, and unincorporated areas of the county within the Tampa-St. Petersburg, Florida "area of dominant influence" ("ADI") served by the systems serving these communities. The petition is unopposed.

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* 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.6 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.7

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;

5 8 FCC Red 2965, 2976-2977 (1993).

6 Section 76.55(e) of the Commission©s Rules provides that the ADIs to be used for purposes of the initial implementation of the mandatory carriage rules are those published in Arbitron©s 1991-1992 Television Market Guide.

1 Because of the topography involved, certain counties are divided into more than one sampling unit Also, in certain circumstances, a station may have its home county assigned to an ADI even though it receives less than a preponderance of the audience in that county. For a more complete description of how counties are allocated, see Arbitron©s Description of Methodology.

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

(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.8

4. The legislative history 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 form 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.9

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 terms of mileage.

1 Communications Act of 1934, as amended, §614(h)(l)(C)(ii), 47 U.S.C. §534(h)(l)(C)(ii).

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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. 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.10

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.11 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.12

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 city of license is closest to the principal headend of the cable system.13 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 of must-carry signals from which to choose, i.e., when it has

10 8 FCC Red at 2977 (emphasis in original).

" 8 FCC Red at 2977 n.139. Viewership data cited herein is county data, rather than community-specific data. However, absent evidence that such data is not fairly reflecdve of viewing in the actual communities in question, we accept such data as probative in cases of this type.

12 47 C.F.R. §76.59.

13 8 FCC Red at 2981.

18023 Federal Communications Commission DA 96-761 used up its channel capacity mandated for broadcast signals carriage, or determined which of duplicating network affiliated stations are entitled to carriage priority.

MARKET FACTS AND ARGUMENTS OF THE PARTIES

8. The communities at issue here are located in Sarasota County which is located to the south of the Tampa-St. Petersburg ADI. According to the petitioners, Arbitron included Sarasota County as part of the Tampa-St Petersburg ADI until October, 1991 when Arbitron created a separate ADI for Sarasota County. Petitioners note that Nielsen still considers Sarasota County to be part of the Tampa television market.14

9. In further support of their petition, the petitioners state that each of the television stations in question has been carried continuously in the communities since 1982, with the exception of WFTS in the community of Venice. 15 With regard to local service, petitioners represent that their Grade B contours encompass most, if not all of the communities. In addition, petitioners state that each has devoted considerable resources to providing coverage of Sarasota and Venice. In 1992, according to WTVT, the station did at least 451 stories on news pertaining to Sarasota County including the communities of Sarasota and Venice which averages out to approximately 8 stories per week. WTVT represents that the average increased to 9 stories per week in 1993. For its part, WFLA-TV submits a representative sampling of the kinds of news and public affairs programming that it offers regarding Sarasota County, including the communities of Sarasota and Venice. WTOG represents that it regularly offers public affairs programming to the Greater Tampa Bay Area, which includes both Sarasota and Venice. WTOG provides examples of programming directed primarily to the elderly, stating that this group comprises a large portion of the population in the area. WFTS represents that it provides local coverage to Sarasota County by covering local academic events, sports, and also through the vehicle of a local program that focuses on the problems and needs of Florida in general and the Tampa Bay area in particular.

10. The petitioners also state that there are only two television stations licensed within the Sarasota ADI: Stations WBSV-TV (Ind., Channel 62), Venice, Florida and WWSB

14 WFTS argues in its "Request for Expedited Action" that because Arbitron has now stopped measuring television audiences on a market-by-market basis, it is no longer a source for defining the geographic limits of television markets for purposes of Commission regulation. Thus, according to WFTS, the Commission must abandon reliance upon Arbitron data which is becoming dated and unreliable. WFTS argues that because Nielsen will eventually become the sole source of data for Commission definition of markets, the Commission should recognize the realities of audience measurement practices and grant WFTS© petition accordingly. As noted in 12 and footnote 7, supra, §4 of the 1992 Cable Act dictates that the markets to be used for purposes of the initial implementation of the mandatory signal carriage rules are those ADIs published in Arbitron©s 1991-1992 Television Market Guide. Therefore the Commission is not at liberty to rely on any other source of data for determining television markets.

" Pursuant to an August 5, 1993 letter from WFTS© counsel, the station should not have been listed as being historically carried by Venice cable systems as originally noted in the petition.

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(ABC, Channel 40), Sarasota, Florida. Petitioners note that the addition of their stations will ensure the availability of signals from other networks, in addition to another independent station as well. With regard to viewing patterns, the petitioners note that cable penetration in Sarasota County is 79 percent. They represent that their signals enjoy universal acceptance in both cable and noncable homes in the communities as demonstrated by the total average shares received by the stations during the Sun.-Sat. 7:00 A.M.-1:00 A.M. time period in the 1992 County Coverage Study for Sarasota County as prepared by Nielsen Media Research. The ratings data indicate that WFLA-TV received a total average share of 15; WFTS received a total average share of 3; WTOG received a 5 share; and WTVT received a total share of 18.

ANALYSIS AND DECISION

11. WTVT, WFLA-TV, and WTOG have demonstrated that the communities here in question are logically part of their ADI markets under the factors specified in the 1992 Cable Act, while WFTS has not met its burden in this regard. The jointly filed petition will, therefore, be granted in part and denied in part. With regard to long term carriage, the petitioners have demonstrated that each of the stations ~ with the exception of WFTS in Venice ~ has been carried continuously in the communities since 1982. As such, WFTS cannot be given credit for historical carriage on the cable system serving the community of Venice. With this exception, however, petitioners have satisfied the first statutory factor.

12. With regard to the second statutory factor, all of the petitioners have demonstrated Grade B coverage to both Sarasota and Venice. In addition, all of the petitioners have demonstrated that they provide coverage of events of interest to the communities. We recognize that in many cases these events are identified as of countywide interest, rather than specific to the communities of Sarasota and Venice. In view of the totality of the circumstances presented in this case, such a showing may be considered probative, though not conclusive. With regard to the third factor, the petitioners have not provided information as to a lack of specific coverage of local events, sports, or news in these communities by other stations presently eligible to assert mandatory carriage rights on cable systems serving them. However, as we have stated previously, we do not believe that Congress intended this criterion to act as a bar to a station©s ADI claim if it were to be shown that other stations serve the communities at issue. 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.

13. Finally, with regard to cable and noncable household viewing patterns, we are persuaded by the available evidence submitted that WFLA-TV, WTVT, and WTOG have a substantial viewing audience in Sarasota and Venice. We note that while the independent station, WTOG, received only a total share of 5 according to the Nielsen data submitted, it fared better than the Sarasota independent station, WBSV-TV, which received a 1 total share. WFTS© viewership in the communities according to the submitted Nielsen data is only a 3 total share. Available Arbitron data reflects petitioners© Nielsen submission. For WFLA-TV, Arbitron shows a 17 total share and an 85 percent net weekly circulation for cable coverage

4 18025 Federal Communications Commission DA 96-761 and a 19 total share with a 74 percent weekly circulation figure for noncable coverage. WTVT has a 15 total share and a 79 percent weekly circulation figure for cable viewing and a 20 total share with a 65 percent weekly figure for noncable coverage.16 WTOG shows a 4 total share with a 45 net weekly circulation figure for cable coverage with a 5 total share and a 44 percent weekly circulation figure for noncable coverage. Among these stations, WFTS-- -currently an ABC affiliate generally shows the lowest figures with a total share of 2 and a 31 percent net weekly figure for cable and a 5 total share with a 41 percent net weekly figure for noncable. By contrast, the ABC Sarasota affiliate, WWSB, received a 17 total share and a 79 percent weekly circulation figure for cable and a 19 total share with a net weekly figure of 75 for noncable coverage. 17

14. Considering the totality of the facts and circumstances in this case, we are convinced that the petitioners have sufficiently justified their request to add the named communities and unincorporated areas of Sarasota County to the Tampa-St. Petersburg ADI, with the exception of WFTS. We except the addition of Venice to WFTS© market because the station has not been historically carried by the cable systems serving Venice, nor does the station receive substantial viewership, especially in contrast to the local ABC affiliate station, Similarly, with regard to the community of Sarasota, although the station has been carried historically by cable systems in that community since 1982, the station receives appreciably less viewership than the current ABC affiliate. Thus, it would appear that residents within the Sarasota ADI are satisfied with the programming they receive, particularly the local programming provided by the Sarasota ADI ABC affiliate.

15. Furthermore, in granting the Commission authority to modify ADIs, Congress did not intend for the Commission to alter basic market structures. Rather our waiver process was to be used to better reflect economic market conditions. In the instant case, the ABC network has chosen to grant each of the subject stations affiliation contracts for their respective markets. Were we to grant the requested waiver, the petitioner would be adding core market communities from the current ABC affiliate©s ADI. We do not believe that Congress intended the ADI modification process to be used this manner. Consequently, with regard to WFTS, we believe that the markets as presently configured are representative of economic market conditions.

ORDER

16. Accordingly, IT IS ORDERED, pursuant to §614(h)(l)(C) of the Communications Act of 1934, as amended (47 U.S.C. §534(h)(l)(Q), and §76.59 of the

16 These 1993 Arbitron figures reflect WTVT©s ratings as a CBS affiliate. We note that WTVT, now a Fox affiliate, still maintains high ratings according to the 1995 Nielsen "County Coverage Study" ratings data. In the Sunday-Saturday/7:00 AM-1:00 AM time period, WTVT has a total average quarter hour share of 13, with a 12 share for cable viewing and an 18 share for non-cable viewing.

17 See Arbitron, Television County Coverage: Florida (Cable Controlled Counties), 1993.

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Commission©s Rules (47 C.F.R. §76.59), That the petition for special relief (CSR-3975-A) filed June 24, 1993 by WTVT License, Inc.; Tampa Television, Inc.; WTOG-TV, Inc.; and Tampa Bay Television, Inc. IS GRANTED to the extent indicated above and in all other respects IS DENIED.

17. IT IS FURTHER ORDERED, That this change shall be effective in accordance with the following schedule: WTVT, WFLA-TV, and WTOG shall notify the cable systems in question in writing of their 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 this Memorandum Opinion and Order. The cable systems shall come into compliance with the applicable rules within 60 days of the above notice.

FEDERAL COMMUNICATIONS COMMISSION

William H. Johnson Deputy Chief, Cable Services Bureau

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