Federal Communications Commission DA 96-1694
Before the Federal Communications Commission Washington, D.C. 20554
MEMORANDUM OPINION AND ORDER
Adopted: October 8, 1996 Released: October 15, 1996
By the Deputy Chief, Cable Services Bureau:
1. On May 9, 1996, Time Warner Cable filed the above-captioned petition for special relief seeking to modify the Philadelphia, Pennsylvania Area of Dominant Influence ("ADI") of Station WTGI-TV (Ind., Ch. 61), Wilmington, Delaware. Specifically, Time Warner requests that WTGI-TV be excluded from the Philadelphia ADI relative to the communities it serves on three separate cable systems in Berks County, Pennsylvania,1 for the purposes of the cable television mandatory broadcast signal carriage rules. WTGI-TV filed an opposition to this petition to which Time Warner replied.
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 a commercial television
©The three Time Warner cable systems located in Berks County operate under the names of BerksCable, Hamburg Cable and Lebanon Valley Cable. BerksCable serves the communities of Alsace Township, Bern Township, Bernville, Brecknock Township, Cumru Township, Exeter Township, Heidelberg Township, Jefferson Township, Kenhorst, Laureldale, Lower Alsace Township, Lower Heidelberg Township, Maidencreek Township, Mohntown, ML Penn, Muhlenberg Township, North Heidelberg Township, Oley Township, Ontelaunee Township, Penn Township, Reading, Ruscombmanor Township, Sinking Spring, South Heidelberg Township, Spring Township, Shillington, Temple, Tilden Township, Upper Bern Township, Upper Tulpehocken Township, Wemersville, West Lawn, West Reading, Wyomissing, and Wyomissing Hills, Pennsylvania. Hamburg Cable serves the communities of Bern Township, Centerport, Centre Township, Greenwich Township, Hamburg, Leesport, Lenhartsville, Maidencreek Township, Ontelaunee Township, Perry Township, Shoemakersville, Tilden Township, West Brunswick and Windsor Township, Pennsylvania. Lebanon Valley Cable serves the communities of Bethel Township, Heidelberg, Jefferson, Marion Township, Robesonia, South Heidelberg, Strausstown, Tulpehocken Township, Upper Tulpehocken Township and Womelsdorf, Pennsylvania. According to the petitioner, these three systems will be interconnected and consolidated into one system by December 31, 1996.
©& FCC Red 2965, 2976-2977 (1993). 13149 Federal Communications Commission DA 96-1694 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 bytaking 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 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
(TV) evidence of viewing patterns in cable and noncable households within the areas served by the cable system or systems in such community.5
©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.
©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 man a preponderance of the audience in that county. For a more complete description of how counties are allocated, see Arbitron©s Description of Methodology.
©Communications Act of 1934, as amended, §614(h)(l)(C)(ii), 47 U.S.C. §534(h)(l)(C)(ii). 13150 Federal Communications Commission DA 96-1694
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 in 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.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 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. 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
©H.R. Rep. No. 628, 102d Cong., 2d Sess 97 (1992).
©8 FCC Red at 2977 (emphasis in original). 13151 Federal Communications Commission DA 96-1694
6. As for deletions of communities from a station©s ADI, the legislative history of this provision indicates that:
The provisions of [this subsection] reflect a recognition that the Commission may conclude that a community within a station©s ADI may be so far removed from the station that it cannot be deemed part of the station©s market. It is not the Committee©s intention that these provisions be used by cable systems to manipulate their carriage obligations to avoid compliance with the objectives of this section. Further, this section is not intended to permit a cable system to discriminate among several stations licensed to the same community. Unless a cable system can point to particularized evidence that its community is not part of one station©s market, it should not be permitted to single out individual stations serving the same area and request that the cable system©s community be deleted from the station©s television market.8
7. In adopting rules to implement this provision, the Commisison 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.9 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 ADI change request.10
8. The communities served by Time Warner are located in Berks County, Pennsylvania and are part of the Philadelphia, Pennsylvania ADI. Wilmington, Delaware, the city of license of WTGI-TV, is also part of the same ADI and is approximately 45 miles from Reading, Pennsylvania, the largest cable community in Berks County.
9. In support of its petition, Time Warner argues that WTGI-TV should be excluded from carriage on its systems because the station does not satisfy any of the four statutory market modification factors. First, Time Warner states that, despite the fact that WTGI-TV has been on- the-air since July 9, 1986, it has never been carried on its systems, nor to its knowledge, carried by any other cable operator in Berks County. Second, Time Warner maintains that WTGI-TV does not provide local coverage to the communities. It points out that WTGI-TV©s Grade B
© H.R. Rep. 102-628, 102d Cong., 2d Sess. 97-98 (1992).
©8 FCC Red at 1977 n. 139. Viewership information cited herein is county data rather than community-specific data. However, absent evidence that such data is not fairly reflective of viewing in the actual communities in question, we accept such data as probative in cases of this type.
1047 C.F.R. §76.59. 13152 Federal Communications Commission DA 96-1694
contour fails to encompass any of its systems© communities11 and its signal cannot be received by Berks County residents. Not only do Berks County©s two local newspapers, Reading Eagle and Reading Times, fail to include WTGI-TV in their TV listings, but the station is also not listed in TV Guide©s Central Pennsylvania edition. Third, Time Warner asserts that WTGI-TV makes no effort to serve Berks County with programming specific to the local needs and interests of its residents. Indeed, it states, WTGI-TV©s weekly program schedule appears to be dominated by "paid" programming, with little or no programming of specific interest even to the residents of Wilrnington, Delaware. Alternatively, Time Warner indicates that its systems provide a variety of public affairs, news and public service programming geared specifically to Berks County residents.12 Fourth, Time Warner submits that given WTGI-TV©s lack of signal coverage and the total absence of media exposure in Berks County, the Commission can only conclude that WTGI- TV fails to achieve any measurable audience shares in Berks County. Therefore, in view of the fact that there is no economic, cultural, social or demographic commonality between Berks County residents and WTGI-TV, Time Warner concludes that its request for deletion should be granted.
10. In its opposition, WTGI-TV states that as an emerging specialty station, it is precisely the sort of station Congress sought to benefit when it adopted the 1992 Cable Act. It argues that Time Warner does not claim that carriage of WTGI-TV will preclude carriage of another station on its cable systems nor does Tune Warner demonstrate how localism is advanced by the deletion of WTGI-TV©s must carry rights. WTGI-TV points out that it provides programming which combines program-length presentations by local and national businesses and community organizations, Christian programming and local affairs programming.13 It also maintains a full-time employee who is dedicated to the development of public interest programming.14 WTGI-TV states that it provides a valuable and effective advertising platform for local merchants and businesses by providing them a means to communicate and relay information to the residents of Berks County. Indeed, approximately 10% of its program-length
"Time Warner states that Reading, Pennsylvania is located 7-9 miles outside of WTGI-TV©s Grade B contour, while the majority of its systems© communities are located even farther away.
©Time Warner points to a) WFMZ-TV, which produces and broadcasts a 30-minute weekday program entitled "Channel 69 News - Berks Edition"; and b) a Time Warner produced local news program entitled "Berks County News 5" which is cablecast on channel 5 each evening, 7 days a week, at 6,7, 10 and 11 p.m.
"WTGI-TV states that since 1995 it has aired the following: a) children©s programming from 6:30 to &7:00 a.m. Monday-Friday; b) public affairs programming from 7:00 to 7:30 a.m Monday, Wednesday & Thursday; c) religious broadcasts 10 p.m. to 6:30 a.m. Sunday thru Thursday, 11 p.m. to 6:30 a.m. on Friday and 10:00 p.m. to 6 a.m. on Saturday; d) "program-length presentations by local and national business organizations" 7:30 a.m. to 10 p.m. Monday, Wednesday & Thursday, 7 a.m. to 10 p.m. on Tuesday, 7 a.m. to 11 p.m. on Friday, 6 a.m. to 11 p.m. on Saturday, and 6 a.m. to 10 p.m. on Sunday.
©This public interest programming includes: "Job Connection", which provides interviewing and recruitment advice for jobs throughout the Philadelphia ADI; "Your Realm", where physicians discuss health issues; and "City Talk", a local community affairs talk show whose development involved contacting community organizations throughout the market 13153 Federal Communications Commission DA 96-1694 presentations are devoted to local businesses and organizations. While Time Warner claims that there is a total absence of ties between WTGI-TV and Berks County, WTGI-TV argues that: a) Reading, the systems© largest community, and Wilmington, WTGI-TV©s city of license, are only 45 miles apart; b) WTGI-TV©s Grade B contour extends into southern portions of Berks County; c) The "Rand McNally Commercial Adas & Marketing Guide" describes Reading, Pennsylvania, Wilmington, Delaware and Philadelphia, Pennsylvania as being in the same "major trading area" based on a "study of such factors as the physiography, population distribution, newspaper circulation, economic activities, [and] highway facilities;" and d) Time Warner carries another Wilmington station, WHYY-TV (PBS, Ch. 12), belying its argument that there is no commonality. Further, WTGI-TV avers that Time Warner is mistaken in its claims that lack of historic carriage, carrying other stations which provide local programming or lack of viewing justify deletion of its signal. The Commission has previously stated that in situations where a petitioner seeks to delete a station from an ADI, "failure to establish historic carriage should not be given such great weight."15 Further, it has repeatedly stated that carriage of other local stations provides no basis for deletion.16 Finally, the Commission has found that specialty stations, such as WTGI-TV, "are capable of offer[ing] desirable diversity of programming... yet typically attract limited audiences."17 WTGI-TV states that in view of the above, Time Warner©s request for deletion should be denied, particularly as it appears that the real reason for Time Warner©s request is not because of distance, but because of its own negative evaluation of WTGI- TV©s programming.
11. In reply Time Warner states that WTGI-TV does not dispute the fact that its signal fails to place either a Grade A or Grade B contour over the systems© communities. Moreover, it should be emphasized that the distance between Reading and Woodstown, New Jersey, WTGI- TV©s transmitter site, is 55 miles, and this it is well-settled that the controlling distance in market modification cases is that between the cable system headend and the station©s transmitter.18 In addition, Time Warner asserts that all of the cases cited by WTGI-TV which minimize the significance of the lack of historical carriage, involve a station which places either a Grade A or Grade B contour over the system communities. In the case herein, Time Warner continues, WTGI-TV fails the coverage test and its lack of carriage during its ten-years of operation clearly reflects its geographic distance and ah absence of local service to Berks County. Further, Time Warner asserts that its carriage of Station WHYY-TV does not show discrimination in refusing to carry WTGI-TV. Despite having the same city of license, states Time Warner, the two
"See Time Warner Cable, 10 FCC Red 936 (1995).
©"See Kansas City Cable Partners, 10 FCC Red 3807 (1995; and North Central Communications, Inc. dba Meredith Cable, 10 FCC Red 4381 (1995).
"See Nationwide Communications, Inc., dba EagleVision, 10 FCC Red 13050 (1995); Further Report and Order in Docket 20553, 53 FCC 2d 442 (1976), recon. denied, 60 FCC 2d 661 (1976); and Home Shopping Report and Order, 8 FCC Red 5327 (1993).
"See e.g. Comcast Cablevision ofMonmouth County, 11 FCC Red 6426 (1996) and Time Warner New York City Cable Group, 11 FCC Red 6528 (1996). 13154 Federal Communications Commission DA 96-1694 stations are not similarly situated and there are major distinctions between them. First, WHYY- TV broadcasts from a transmitter site at the Roxborough Antenna Farm in Philadelphia, Pennsylvania19 and places a Grade B contour over all of the systems© communities. Second, it is the predominant PBS station in eastern Pennsylvania, has been on-the-air for 30 years, and has been a cornerstone of cable channel lineups throughout the ADI. Third, as a noncommercial station it does not compete with WTGI-TV for viewers and advertising. With regard to programming, Time Warner maintains that WTGI-TV has failed to provide any specific information establishing a nexus between its programming and Berks County. The fact that Wilmington and Reading are in the same Rand McNally-defined "major trading area" is no more relevant than that these communities are in the same ADI market and does not make WTGI-TV into a "local" station for Berks County. Time Warner states that WTGI-TV also overlooks the fact that in Comcast Cablevision of Monmouth County, supra, the Commission found that the presence of local coverage by other stations is a significant factor in instances where a cable operator seeks to delete a station which does not serve the cable communities. Finally, Time Warner points out that WTGI-TV fails to provide any evidence of viewing in Berks County and that lack of such viewersnip, combined with no historical carriage, geographic distance and absence of local coverage are sufficient to grant exclusion.
12. Based on the four statutory and other relevant factors, Time Warnefs petition will be granted. As an initial matter, we note that, according to the legislative history of the 1992 Cable Act, the use of ADI market areas is intended "to ensure that television stations be carried in the areas which they service and which form their economic market."20 Changes may be sought and granted by the Commission "to better effectuate the purposes" of the mandatory carriage requirements.21 The ADI market change process incorporated into the Communications Act, however, is not intended to be a process whereby cable operators may seek relief from the mandatory signal carriage obligations apart from the question of whether a change in the market area involved is warranted. When viewed against this backdrop, and considering all of the relevant factual circumstances in the record, we believe that the operator©s deletion petition appears to be a legitimate request to redraw ADI boundaries to make them congruous with market realities. Time Warner©s actions do not reflect an intention to skirt its signal carriage responsibilities under the Communications Act and the Commission©s Rules nor do they evidence a pattern of discriminatory conduct against the station subject to deletion. Based on the geography and the statutory factors, we believe that the Berks County communities in question are sufficiently removed from WTGI-TV that it ought not be deemed part of the station©s market for mandatory carriage purposes. The evidence before us distinguishes the various Berks County
©Time Warner argues that from the standpoint of technical facilities, WHYY-TV could more properly be called a Philadelphia station and not a Wilmington, Delaware station.
"H.R. Rep. 102-628, 102d Cong., 2d Sess. 97 (1992).
"47 U.S.C. §534(h). 13155 Federal Communications Commission DA 96-1694 communities from Wilmington, Delaware and persuades us that the action requested would "better effectuate the purposes" of Section 614. We believe Congress enacted Section 614(h) with a deletion provision so that market anomalies such as this one could be properly rectified through the special relief process.
13. At the outset, the evidence suggests that WTGI-TV does not provide local service to the communities in question. WTGI-TV does not place either a Grade A or Grade B contour over the cable communities.22 Indeed, the cable communities are in a different state and are located diagionally across the market over irregular terrain from WTGI-TV. In addition, we do not believe that it has been shown that WTGI-TV carries programming of specific local interest or import for cable viewers in the relevant Berks County communities. The WTGI-TV programming information provided indicates programming of potential general interest but without specific ties to any of the Berks County communities at issue in this matter. While we recognize that WTGI-TV is a station that may generally have limited audience, we must give some weight to the fact that the station also has no reported audience in the counties where the cable communities are located, has no history of carriage on Time Warner©s systems, despite ten years of operation, and apparently has never been carried on any other cable system in Berks County. It should also be noted that not only is WTGI-TV not listed in any local TV listings for Berks County, but WTGI-TV has provided no information that any of its income is attributable to the communities at issue. Wilmington, Delaware, WTGI-TV©s city of license, and Woodstown, New Jersey, WTGI-TV©s transmitter location, are approximately 45 and 55 miles respectively from the relevant cable communities. The distance involved attenuates the local ties the station might have to be cable communities and helps explain why the station©s viewership is too low to be reported.
14. We also believe that Time Warner©s carriage of other local television stations provides support for the action requested. Where a cable operator is seeking to delete a station©s mandatory carriage rights in certain communities within its ADI, and it is clear that the station is not providing local service to those communities, the issue of local coverage by other stations becomes a factor which we will give greater weight than in cases where a party is seeking to add communities. In this case there are several television stations carried by Time Warner©s systems23 that have a closer nexus to the Berks County communities and provide more focused local programming than WTGI-TV.
have held that-the local service requirement is satisfied if the station©s Grade B contour covers the community. See 8 FCC Red at 2981.
"The stations carried by Time Warner are WMFZ-TV (Ind.) and WLVT-TV (PBS), Allentown, Pennsylvania; WTTF-TV (PBS), Harrisburg, Pennsylvania; WGAL (NBC) and WLYH-TV (CBS), Lancaster, Pennsylvania; KYW- TV (NBC), WCAU-TV (CBS), WGBS-TV (Ind.), WPHL-TV (Ind.), WPVI-TV (ABC) and WTXF (Fox), Philadelphia, Pennsylvania; WTVE (Ind.), Reading, Pennsylvania; WVIA-TV (PBS), Scranton, Pennsylvania; WHYY-TV (PBS), Wilmington, Delaware; and WPMT (Fox), York, Pennsylvania. 13156 Federal Communications Commission DA 96-1694
15. Time Warner also demonstrates that WTGI-TV has no historical carriage on the cable systems in question and has no audience in Berks County in which the cable systems are located. Because WTGI-TV is a specialized format station, these facts are not determinative, in and of themselves, of the relationship between the cable communities and the market of the television station, nor should their absence permit a cable operator to undermine the objectives of the mandatory carriage requirement. Here, however, we conclude that the lack of historical carriage and the dearth of audience is of evidentiary significance when linked with other information regarding the market and the particular distances involved, particularly where a station has been broadcasting since 1986 and has no noncable audience share in the relevant communities. In these circumstances, we cannot discount WTGI-TV©s existing carriage and audience as proper indicators of the scope of its market area.
16. This is not a situation where the carriage pattern suggests that a station is logically part of the market for carriage purposes but has not been carried for competitive reasons. Nor do we believe that the operator has impermissibly singled out WTGI-TV from among other similarly situated stations as the sole station is has declined to carry.
17. Accordingly, IT IS ORDERED, pursuant to §614(h) of the Communications Act of 1934, as amended, 47 U.S.C. §534, and §76.59 of the Commission©s Rules, 47 C.F.R. §76.59, that the petition for special relief, filed May 9, 1996 by Time Warner Cable IS GRANTED.
18. This action is taken pursuant to authority delegated by §0.321 of the Commission©s Rules, 47 C.F.R. §0.321.
FEDERAL COMMUNICATIONS COMMISSION
William H. Johnson Deputy Chief, Cable Services Bureau