Federal Communications Commission Record DA 96-262

11 FCC Red No.7 Federal Communications Commission Record DA 96-262

3. Under the Act, however, the Commission is also di- Before the rected to consider changes in AD! areas. Section Federal Communications Commission 614(h)(1)(C) provides that the Commission may: Washington, D.C. 20554 with respect to a particular television broadcast station, include additional communities within its tele- In re vision market or exclude communities from such station's television market to better effectuate the Liberty Corporation CSR-41 10-A purposes of this section. Biloxi, Mississippi In considering such requests, the Act provides that: For Modification of the Biloxi-Gulfport- Pascagoula, Mississippi AD! the Commission shall afford particular attention to the value of localism by taking into account such factors as -- MEMORANDUM OPINION AND ORDER (I) whether the station, or other stations located in Adopted: February 28, 1996; the same area, have been historically carried on the Released: March 20, 1996 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; (III) whether any other television station that is eli- INTRODUCTION gible to be carried by a cable system in such community in fulfillment of the requirements of this section 1. Liberty Corporation,1 licensee of Station WLOX-TV provides news coverage of issues of concern to such (ABC, Ch. 13), Biloxi, Mississippi, has filed a petition for community or provides carriage or coverage of sport- special relief seeking to include the communities of Pica- ing and other events of interest to the community; yune, Kiln, Lucedale, and the unincorporated areas of and Hancock County, Mississippi in the Biloxi-Gulfport- (IV) evidence of viewing patterns in cable and Pascagoula, Mississippi AD! for purposes of the Commis- noncable households within the areas served by the sion's mandatory signal carriage rules. An opposition to cable system or systems in such community.5 this petition was filed on behalf of Rampart Operating Partnership, licensee of Station WWL-TV (CBS, Ch. 4), New Orleans, Louisiana to which WLOX-TV has respond- 4. The legislative history of this provision indicates that: ed. where the presumption in favor of ADI carriage would result in cable subscribers losing access to BACKGROUND local stations because they are outside the AD! in 2. Pursuant to §614 of the Communications Act and which a local cable system operates, the FCC may implementing rules adopted by the Commission in its Re- make an adjustment to include or exclude particular port and Order in MM Docket 92259,2 commercial televi- communities from a television station's market con- sion broadcast stations are entitled to assert mandatory sistent with Congress' objective to ensure that televi- carriage rights on cable systems located within the station's sion stations be carried in the areas which they serve market. A station's market for this purpose is its "area of and which form their economic market. dominant influence" or AD! as defined by the Arbitron audience research organization.3 An ADI is a geographic market designation that defines each television market ex- * '1' * '1' * clusive of others, based on measured viewing patterns. Essentially, each county in the United States is allocated to [This subsection[ establishes certain criteria which the a market based on which home-market stations receive a Commission shall consider in acting on requests to preponderance of total viewing hours in the county. For modify the geographic area in which stations have purposes of this calculation, both over-the-air and cable signal carriage rights. These factors are not intended television viewing are included.4 to be exclusive, but may be used to demonstrate that a community is part of a particular station's market.6

The petition was originally filed by Love Broadcasting Com- an ADI even though it receives less than a preponderance of the pany, former licensee ol WLOX-TV. audience in that county. For a more complete description of 8 FCC Rcd 2965, 2976-2977 (1993). how counties are allocated, see Arbitron's Description of Meth- Section 76.55(e) of the Commission's Rules provides that the odology. ADls to be used for purposes of the initial implementation of Communications Act of 1934, as amended, §614(h)(l)(C)(ii), the mandatory carriage rules are those published in Arbitron's 47 U.S.C. §534(h)(l)(C)(ii). 1991-1992 Televi3ion Marker Guide. FIR. Rep. No. 628, 102d Cong., 2d Sess. 97 (1992). 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

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5. The Commission provided guidance in its Report and broadcast network, it is obliged to carry the affiliate from Order in MM Docket 92-259, supra, to aid decision making within the market whose city of license is closest to the in these matters, as follows: principal headend of the cable system.'° Accordingly, based on the specific circumstances involved, the addition of For example, the historical carriage of the station communities to a station's market area may guarantee it could be illustrated by the submission of documents cable carriage and specific channel position rights; simply listing the cable system's channel line-up (e.g., rate provide the system operator with an expanded list of must- cards) for a period of years. To show that the station carry signals from which to choose, i.e., when it has used provides coverage or other local service to the cable up its channel capacity mandated for broadcast signals community (factor 2), parties may demonstrate that carriage, or determined which of duplicating network affili- the station places at least a Grade B coverage contour ated stations are entitled to carriage priority. 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 MODIFICATION ARGUMENTS could he demonstrated by program logs or other 8. The communities in question are located in Pearl descriptions of local program offerings. The final fac- River and Hancock Counties, Mississippi which are consid- tor concerns viewing patterns in the cable commu- ered to be part of the New Orleans, Louisiana ADI and nity in cable and noncable homes. Audience data George County, Mississippi which is considered to be part clearly provide appropriate evidence about this fac- of the Mobile, Alabama-Pensacola, Florida ADI.1' WLOX- tor. In this regard, we note that surveys such as those TV is located no more than 35 miles from the used to demonstrate significantly viewed status could communities herein and its Grade A contour encompasses be useful. However, since this factor requires us to all of the communities. evaluate viewing on a community basis for cable and 9. In support of its petition, WLOX-TV states that it was noncable homes, and significantly viewed surveys informed by Gulf American Cable, the system serving the typically measure viewing only in noncable house- subject communities, that its carriage would be terminated holds, such surveys may need to be supplemented in favor of Television Broadcast Station WVUE (ABC, Ch. with additional data concerning viewing in cable 8), New Orleans, Louisiana, in Pearl River and Hancock homes.7 Counties and Station WEAR-TV (ABC, Ch. 3), Pensacola, 6. In adopting rules to implement this provision, the Florida, in George County. WLOX-TV points out that Commission indicated that changes requested should be Pearl River and Hancock Counties are directly adjacent to considered on a community-by-community basis rather the Biloxi ADI and George County, although part of the than on a county-by-county basis and that they should be Mobile ADI, is in the center of the Biloxi ADI and artifi- treated as specific to particular stations rather than ap- cially separates the northern and southern portions of the plicable in common to all stations in the market.8 The market. WLOX-TV argues that it is the most popular ABC rules further provide, in accordance wit-h the requirements station in the three subject counties and its deletion would of the Act, that a station not be deleted from carriage deprive Gulf American subscribers of the only ABC station during the pendency of an market area change request.9 to provide local, in-state programming. Petitioner states 7. Adding communities to a station's market area gen- that it fully meets all of the established modification cri- erally entitles that station to insist on cable carriage in teria: a) it has been historically carried in all of the com- those communities. However, this right is subject to several munities since system activation:'2 indeed, it continues to conditions: 1) a cable system operator is.generally required be carried on alternative cable systems in Picayune and to devote no more than one-third of its activated channel Lucedale;'3 b) its signal is significantly viewed in all three capacity to compliance with the mandatory signal carriage counties; c) it places a Grade A contour over all of the obligations, 2) the station is responsible for delivering a communities while WEAR-TV places only a partial Grade good quality signal to the principal headend of the system, B contour over George County and WVUE barely places a 3) indemnification may be required for any increase in Grade A contour over the extreme southern portions of copyright liability resulting from carriage, and 4) the sys- Hancock and Pearl River Counties;'4 d) it provides regular tern operator is not required to carry the signal of any and extensive coverage of news and local events in the station whose signal substantially duplicates the signal of three counties and is the only Biloxi market station with a any other local signal carried or the signals of more than full-time news bureau in Hancock County; alternatively, one local station affiliated with a particular broadcast net- neither WVUE nor WEAR-TV have a news bureau in work. If, pursuant to these requirements, a system operator Mississippi and offer little coverage of local news; e) it is elects to carry the signal of only a single affiliate of a the only Mississippi station carried on the systems to pro-

8 FCC Rcd at 2977 (emphasis in original). 2 According to the information provided by WLOX-TV, the 8 8 FCC Rcd at 2977 n.139. Vievership data cited herein is Picayune system began operation in February 1975 and the county data, rather than community-specific data. However, Lucedale system in August 1981. absent evidence that such data is not fairly reflective of viewing ' The alternative cable systems are: Cablevision of Picayune in the actual communities in question, we accept such data as serving Picayune, Carriere and Nicholson. Mississippi; and probative in cases of this type. Multivision Cable-Lucedale serving Lucedale. Both systems have ' 47 C.F.R. §76.59. carried WLOX-TV since approximately 191t2. 8 FCC Rcd at 2981. ' WLOX-TV points out that WVUE's Grade A contour does Picayune is located in Pearl River County, Kiln is located in not encompass Picayune. Hancock County, and Lucedale is located within George Coun- ty.

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11 FCC Red No.7 Federal Communications Commission Record DA 96-262

vide news coverage from the state capital; f) the 1993 A.C. 57%, 59% and 92%, respectively. The shares for the other Nielsen county coverage surveys indicate that it receives a market ABC stations, WEAR-TV and WVUE, for the same substantially larger share of viewership than do the other areas are substantially less. We recognize that this data is ABC stations.15 county data, rather than community-specific data, but we 10. In its opposition, WWL-TV argues that to grant shall accept it as probative (although not conclusive) in WLOX-TV's request could open a floodgate of such re- cases of this type, absent evidence that it is not fairly quests and would be in contravention to Congress' intent reflective of viewing in the actual communities in question. in adopting the ADI market concept for signal carriage Finally, we note the unusual nature of the Biloxi market purposes. It maintains that the modification process was in relation to the Mobile market whose only Mississippi designed to provide flexibility in those anomalous situ- county centrally bisects the Biloxi ADI. ations'6 inconsistent with Congress' objective of ensuring carriage of TV stations in the areas which they serve and which form their economic market. WWL-TV avers that ORDER the instant situation does not fit this category because the 13. In view of the foregoing, we find that grant of compact, adjacent nature of the Biloxi and New Orleans WLOX-TV's petition is in the public interest. markets allows viewers to watch signals from both markets. 14. Accordingly, IT IS ORDERED, pursuant to §614(c) Finally, despite WLOX-TV's assertions, WWL-TV states that of the Communications Act of 1934, as amended, 47 U.S.C. it has long been carried on the Gulf American cable §534, and §76.59 of the Commission's Rules, 47 C.F.R. system and it provides programming specific to the con- §76.59, that the captioned petition for special relief, filed cerns of the communities herein. by Liberty Corporation, IS GRANTED. This change shall 11. wLox-Tv states in opposition that WWL-TV's ar- be effective in accordance with the following schedule: guments provide no basis for denial of its request and in WLOX-TV shall notify the cable system in question in fact seem to be addressed more to overall policy than to a writing of its carriage and channel position elections, see specific proceeding. Moreover, WWL-TV's contention that 47 C.F.R. §76.56, 76.57, 76.64(f), within thirty (30) days only situations of market incontiguity justify modification of the release date of this Memorandum Opinion and Order. expressly fit the situation herein where the Biloxi market is The affected cable system shall come into compliance with separated by George County. the applicable rules within 60 days of such notification. 15. This action is taken pursuant to authority delegated by §0.32 1 of the Commission's Rules. DISCUSSION 12. We shall grant WLOX-TV's request to include the FEDERAL COMMUNICATIONS COMMISSION communities of Picayune, Kiln, Lucedale and the unincorporated areas of Hancock County, Mississippi within the Biloxi-Gulfport-Pascagoula, Mississippi ADI for must carry purposes. First, WLOX-TV has demonstrated a long history of carriage on the cable system serving the communities. Secondly, WLOX-TV has shown that it pro- William H. Johnson vides coverage of and service to these communities and Deputy Chief, Cable Services Bureau that they are all encompassed by its Grade A contour. We have stated reviously that this, alone, is sufficient to satisfy this factor." Third, WLOX-TV's showing with regard to local programming augments this finding. While we ac- knowledge that WWL-TV's showing indicates that it also covers local events in the subject communities, we do not believe that Congress intended for the third criterion to operate as a bar to a station's ADI claim whenever other stations can also be shown to 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. More- over, it is noteworthy that the only objection filed in this proceeding was by a CBS station and that neither of the ABC stations mentioned herein provided an opinion. With regard to viewing patterns, the 1995 A.C. Nielsen Coun- ty/Coverage Study indicates that for Pearl River, Hancock and George Counties WLOX-TV achieves total viewing shares of 15%, 13% and 36% and net weekly shares of

15 For instance, in Hancock County, Nielsen indicates an 11% and Dawes County, Nebraska which is included in the Denver share of total viewing hours and a 64% share net weekly AD! while being completely surrounded by the Rapid City, circulation for WLOX-TV while WVUE receives shares of 9% South Dakota ADI. and 67%. 8 FCC rcd at 2977. See paragraph 5, supra. 16 WWL-TV cites such examples as Washakie County, Wyo- ming which is included in the Salt Lake City ADI even though it is separated from that market by the Casper-Riverton ADI,

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