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. In this regard, surrounding the used to demonstrate significantly viewed status could tion due to the "anomalous circumstances be useful. However, since this factor requires us to station©s request." evaluate viewing on a community basis for cable and 10. Greater Media explains that its system serves approxi noncable homes, and significantly viewed surveys mately 79,000 subscribers in the City of Philadelphia. The typically measure viewing only in noncable house- . system©s channel capacity currently operates at 78 chan holds, such surveys may need to be supplemented nels. To support its petition, Greater Media asserts that with additional data concerning viewing in cable WWAC fails to satisfy any of the four market factors set homes.7 forth in the 1992 Cable Act and the Commission©s rules. With regard to the historical carriage factor, the operator
H.R. Rep. 102-628, 102d Cong., 2d Sess. at 97 (1992). 8 Id. and n.139. H.R. Rep. 102-628, 102d Cong., 2d Sess. 97-98 (1992). 9 47 C.F.R. §76.59. 8 FCC Red at 2977 (emphasis in original). 10 8 FCC Red at 2981.
8789 DA 95-1699 Federal Communications Commission Record 10 FCC Red No. 17 asserts that WWAC has never been carried on the systems tower heights, the necessary effective radiated power to nor was it carried on any other cable system in the Phila reach Philadelphia would pose risks of human exposure to delphia area prior to the reimposition of must carry. Peti radio frequency radiation. WWAC therefore asserts that the tioner also alleges that the station fails the local service only method it can provide service to the Philadelphia element of the market modification test. First, WWAC is market is via cable and proposes to provide the station©s licensed to Atlantic City, New Jersey, more than 50 miles signal to the system via a fiber path to be constructed at its distant from the Philadelphia system. In addition, the sys expense. As for local programming, the station states that tem is well beyond WWAC©s Grade B contour and no because of the tower limitations, it has confined commu detectible signal can be received at the Philadelphia princi nity programming to Atlantic City and nearby commu pal headend. According to the operator, WWAC also nities, areas where the signal is presently available. The broadcasts home shopping programming that lacks a local station adds that the requirement that it air programming focus; Greater Media estimates that over 75% of the sta geared toward Philadelphia residents in the absence of tion©s broadcast consists of home shopping such as "Value signal availability is not logical or fair. The station also Vision" and "Shop at Home." Greater Media estimates that argues that Greater Media©s lack of carriage has impeded the "local" programming the station does air amounts to its ability to finance further local programming efforts. no more than 5 hours of its broadcasting week. Moreover, WWAC asserts that there are common ties be 11. Referring to the third factor, Greater Media states tween Atlantic City and Philadelphia, demonstrating a uni that several area stations provide extensive local program fied market, as evidenced by the wide circulation of the ming throughout each day. The system carries a total of 13 Philadelphia Inquirer in Atlantic City and the existence of local broadcast stations, including 9 commercial stations the Atlantic City expressway which directly connects the and 4 non-commercial stations. The system also carries at two points. Finally, WWAC claims that Greater Media©s least 7 local access channels which provide programming carriage of two other home shopping stations implicitly by and for the system communities. The operator also shows its anti-competitive tendencies. asserts that it supplements its channel line-up with over 30 hours of locally produced community interest shows and that it inserts a daily 5 minute segment of local news onto ANALYSIS AND DECISION the CNN Headline News Channel. Moreover, the system 14. We will grant Greater Media©s request. Based on the already carries 2 full time home shopping networks, QVC geography and the statutory factors, we believe that Phila and WHSP. With regard to viewership, the operator alleges delphia is sufficiently removed from WWAC that it ought that WWAC has insignificant viewing and was unable to not be deemed part of the station©s market for mandatory identify any commercial ratings for the station within its carriage purposes.11 The evidence before us, which we service area. believe has not been sufficiently disputed by WWAC, dis 12. In opposition, WWAC asserts that Greater Media©s tinguishes Philadelphia from Atlantic City and persuades petition should be denied because carriage of the station on us that the action requested would "better effectuate pur the system serves the "substantial government interest in poses" of Section 614 of the 1992 Cable Act. promoting the continued availability of... free television 15. At the outset, the evidence suggests that WWAC does programming..." WWAC notes that New Jersey broadcast not provide local service to the communities in question. ers have a special responsibility to the residents in the state WWAC©s does not place either a Grade A or Grade B and that the station©s public service would be diminished as contour over the cable communities. 12 We note that this a result of its lack of access on the Philadelphia cable lack of coverage is due to the station©s technical limitations. system. WWAC argues the problem would be exacerbated However, we believe Congress enacted Section 614(h) with if Philadelphia is removed from its ADI because it already a deletion provision so that market anomalies such as this has no access to New York ADI cable communities even one could be properly rectified through the special relief though Atlantic City is near the border of that market. process. Moreover, the station admits that it does not carry Granting the deletion request would also re-create the com programming designed for cable viewers in the City of petitive imbalance between WWAC and the system because Philadelphia. WWAC also has no reported audience in it would destroy the station©s ability to compete for Phila Philadelphia County where the cable community is located delphia viewers along with the station©s ability to enhance and it has no history of cable carriage. Moreover, Atlantic its local news and public affairs broadcasting. City, NJ, WWAC©s city of license, is about 55 miles away 13. As for the four market modification factors, WWAC from Philadelphia. The distance and technological impedi submits that historical carriage on cable systems in the ments involved attenuates the local ties the station might community has little significance here because lack of car have to the cable communities and helps explain why the riage in deletion cases is "more likely a reflection of the station©s viewership is too low to be reported. cable system©s ability to flex its past anti-competitive mus 16. We also believe that Greater Media©s carriage of cle, rather than an indication that the station should not be other local television stations provides support for the ac entitled to carriage." With regard to the local service factor, tion requested. We recognize that Congress did not intend WWAC notes that its signal is presently unavailable off- the third statutory criterion to operate as a bar to a sta the-air in Philadelphia for two reasons. First, the FAA will tion©s ADI claim whenever other stations could also be not approve construction of a tower of sufficient height to shown to serve the communities at issue. However, we provide service to Philadelphia. Second, at permissible believe this case is exemplary in that there are several
11 H.R. Rep. 102-628, at 97-98. 12 We 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.
8790 10 FCC Red NO. 17 Federal Communications Commission Record DA 95-1699
television stations, such as KYW and WCAU, licensed with in and around Philadelphia which have a closer nexus to the City and provide more focused local programming than WWAC. These market facts, coupled with the distance between the cable community and WWAC, supports Great er Media©s argument under the third factor. 17. Greater Media also demonstrates that WWAC has no historical carriage on the cable system in question and has no audience in the county in which the cable system is located. Because WWAC is both a relatively new station, returning to the air in 1988,13 and one with a specialized format, these facts are not proper indicators, in and of themselves, of the relationship between the cable commu nities and the market of the television station nor should their absence permit a cable operator to undermine the objectives of the mandatory carriage requirement.14 Here, however, we conclude that the lack of historical carriage and the dearth of audience is of evidential significance when linked with other information regarding the market, the station©s technical configuration, and the particular geography involved. 18. This is not a situation whete the carriage pattern suggests that a station is logically part of the market for carriage purposes but has not been carried for competitive or content reasons. Nor do we believe that the operator has impermissibly singled out WWAC from among other simi larly situated stations as the sole station it has declined to carry. We also note that no other Philadelphia area cable system is carrying WWAC©s signal. In these circumstances, we cannot discount WWAC©s lack of carriage and audience as indicators of the scope of its market area. 19. Given these facts, the operator©s deletion petition appears to be a legitimate request to redraw ADI bound aries to make them congruous with market realities.
ORDERING CLAUSES 20. Accordingly, IT IS ORDERED, pursuant to Section 614(h) of the Communications Act of 1934, as amended, 47 U.S.C. § 534(h), and Section 76.59 of the Commission©s Rules, 47 C.F.R. § 76.59, that the "Petition for Special Relief (CSR-4446-A) filed January 3, 1994, by Greater Philadelphia Cablevision, Inc. IS GRANTED. 21. 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
13 WWAC began operation on July 29, 1981. It went black in July 1982. The Commission granted assignment of the license to the current owner in May, 1991. 14 See, eg., Time Warner Cable of Houston, Texas (CSR- 4108-A) (adopted: June 8, 199S).