DA 95-1699 Federal Communications Commission Record 10 FCC Red No. 17 3. Under the Act, however, the Commission is also di Before the rected to consider changes in ADI areas. Section 614(h) Federal Communications Commission provides that the Commission may: Washington, D.C. 20554 with respect to a particular television broadcast sta tion, include additional communities within its tele In re: vision market or exclude communities from such station©s television market to better effectuate the Petition of Greater Philadelphia CSR-4446-A purposes of this section. Cablevision, Inc. In considering such requests, the 1992 Cable Act provides For Modification of the ADI of that: Station WWAC, Atlantic City, NJ the Commission shall afford particular attention to the value of localism by taking into account such MEMORANDUM OPINION AND ORDER factors as- (I) whether the station, or other stations located in Adopted: July 31,1995; Released: August 17,1995 the same area, have been historically carried on the cable system or systems within such community; By the Cable Services Bureau: (II) whether the television station provides coverage or other local service to such community; INTRODUCTION (III) whether any other television station that is eli 1. Before the Commission is a petition filed by Greater gible to be carried by a cable system in such commu Philadelphia Cablevision, Inc. ("Greater Media" or "oper nity in fulfillment of the requirements of this section ator") seeking to modify the Philadelphia, PA "area of provides news coverage of issues of concern to such dominant influence" ("ADI") and to exclude that area of community or provides carriage or coverage of sport the City of Philadelphia it serves from the television mar ing and other events of interest to the community; ket of station WWAC (Ch. 53, Atlantic City, NJ) for pur and poses of the cable television mandatory broadcast signal (IV) evidence of viewing patterns in cable and carriage rules. This petition is opposed by Cellular Phone noncable households within the areas served by the Centers, Inc., licensee of WWAC. cable system or systems in such community. 4. The legislative history of this provision indicates that: BACKGROUND 2. Pursuant to §4 of the Cable Television Consumer Protection and Competition Act of 1992 ("1992 Cable where the presumption in favor of ADI carriage Commission would result in cable subscribers losing access to Act") 1 and implementing rules adopted by the in in its Report and Order in MM Docket 92-2S9,2 a commer local stations because they are outside the ADI cial television broadcast station is entitled to assert man which a local cable system operates, the FCC may on cable systems located within the make an adjustment to include or exclude particular datory carriage rights con station©s market. A station©s market for this purpose is its communities from a television station©s market influence," or ADI, as defined by the sistent with Congress© objective to ensure that televi "area of dominant serve Arbitron audience research organization.3 An ADI is a sion stations be carried in the areas which they geographic market designation that defines each television and which form their economic market. 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 1 Pub. L. No. 102-385, 106 Stat. 1460 (1992). used for purposes of the initial implementation of the man 2 Broadcast Signal Carriage Issues, 8 FCC Red 2965, 2976-2977 datory carriage rules are those published in Arbitron©s (1993). 1991-1992 Television Market Guide. 3 Section 4 of the 1992 Cable Act specifies that a commercial 4 Certain counties are divided into more than one sampling broadcasting station©s market shall be determined in the man unit because of the topography involved. Also, in certain cir ner provided in §73.3555(d)(3)(i) of the Commission©s Rules, as cumstances, a station may have its home county assigned to an in effect on May 1, 1991. This section of the rules, now ADI even though it receives less than a preponderance of the redesignated §73.3555(e)(3)(i), refers to Arbitron©s ADI for pur audience in that county. Refer to Arbitron©s Description of poses of the broadcast multiple ownership rules. Section Methodology handbook for a more complete description of how 76.55(e) of the Commission©s Rules provides that the ADIs to be counties are allocated. 8788 10 FCC Red No. 17 Federal Communications Commission Record DA 95-1699 * * * * * 7. In adopting rules to implement this provision, the Commission indicated that requested changes should be considered on a community-by-community basis rather [This subsection] establishes certain criteria which the basis, and that they should be requests to than on a county-by-county Commission shall consider in acting on treated as specific to particular stations rather than ap modify the geographic area in which stations have to all stations in the market.8 The not intended plicable in common signal carriage rights. These factors are rules further provide, in accordance with the requirements to be exclusive, but may be used to demonstrate that Act, that a station not be deleted from market.5 of the 1992 Cable a community is part of a particular station©s carriage during the pendency of an ADI change request.9 communities to a station©s ADI generally en a station©s ADI, 8. Adding 5. As for deletions of communities from titles that station to insist on cable carriage in those com the legislative history of this provision indicates that: munities. However, this right is subject to several conditions: 1) a cable system operator is generally required The provisions of [this subsection] reflect a recogni to devote no more than one-third of the system©s activated tion that the Commission may conclude that a com channel capacity to compliance with the mandatory signal munity within a station©s ADI may be so far removed carriage obligations; 2) the station is responsible for from the station that it cannot be deemed part of the delivering a good quality signal to the principal headend of station©s market. It is not the Committee©s intention the system; 3) indemnification may be required for any that these provisions be used by cable systems to increase in copyright liability resulting from carriage; and manipulate their carriage obligations to avoid compli 4) the system operator is not required to carry the signal of ance with the objectives of this section. Further, this any station whose signal substantially duplicates the signal section is not ©intended to permit a cable system to of any other local signal carried, or the signal of more than discriminate among several stations licensed to the . one local station affiliated with a particular broadcast net same community. Unless a cable system can point to work. If, pursuant to these requirements, a system operator particularized evidence that its community is not part elects to carry the signal of only one such duplicating of one station©s market, it should not be permitted to signal, the operator is obliged to carry the station from the single out individual stations serving the same area ADI whose city of license is closest to the principal and request that the cable system©s community be headend of the cable system.10 Accordingly, based on the deleted from the station©s television market.6 specific circumstances involved, the addition of commu nities to a station©s ADI may guarantee it cable carriage 6. The Commission provided the following guidance in and specific channel position rights, or may simply provide the Report and Order to aid decisionmaking in these mat the system operator with an expanded list of must-carry ters: signals from which to choose (i.e., when the system has used up its channel capacity mandated for broadcast signal which of duplicating network affili the station carriage, or determined For example, the historical carriage of ated stations are entitled to carriage priority). 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 MARKET FACTS AND ARGUMENTS OF THE PARTIES provides coverage or other local service to the cable that 9. In its petition, Greater Media requests that the Com community (factor 2), parties may demonstrate its least a Grade B coverage contour mission modify WWAC©s must carry market to exclude the station places at Media states that al over the cable community or is located close to the Philadelphia cable system. Greater news or though the Philadelphia ADI technically encompasses both community in terms of mileage. Coverage.of rights of interest to the community WWAC and the system, affording WWAC must carry other programming to the, localism goals could be demonstrated by program logs or other in Philadelphia would be counter offerings. The final fac underlying the signal carriage regime. In addition, man descriptions of local program operator to viewing patterns in the cable commu datory carriage of the station will force the tor concerns Greater Media also nity in cable and noncable homes. Audience data delete an existing program service. about this fac notes that WWAC requested carriage on the system by clearly provide appropriate evidence modifica we note that surveys such as those letter dated August 24, 1994 and that it is seeking tor.