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DA 96-148 Federal Communications Commission Record 11 FCC Rcd No. 6

preponderance of total viewing hours in the county. For Before the purposes of this calculation, both over-the-air and cable Federal Communications Commission viewing are included.5 Washington, D.C. 20554 3. Under the Act, however, the Commission is also di- rected to consider changes in ADI areas. Section 4 provides that the Commission may: In re:

Petition of with respect to a particular television broadcast sta- CSR-3905-A tion, include additional communities within its tele- vision market or exclude communities from such For Modification of Station station's television market to better effectuate the WKOI-TV's AD! purposes of this section.

In considering such requests, the Act provides that: MEMORANDUM OPINION AND ORDER

Adopted: February 6, 1996; Released: March 4, 1996 the Commission shall afford particular attention to the value of localism by taking into account such By the Cable Services Bureau: factors as -- - (I) whether the station, or other stations located in the same area, have been historically carried on the INTRODUCTION cable system or systems within such community; 1. Before the Commission is a petition for special relief (II) whether the provides coverage filed by Time Warner Cable ("Time Warner"). seeking to or other local service to such community; modify the Dayton, "area of dominant influence" ("AD!") to exclude the communities served by Time (III) whether any other television station that is eli- gible to be carried by a cable system in such commu- Warner from WKOI-TV's television market.' Trinity Broad- casting of Indiana, Inc. ("Trinity"), licensee of Station nity in fulfillment of the requirements of this section provides news coverage of issues of concern to such WKOI-TV (Ch. 43), Richmond, Indiana, filed an opposi- tion to the petition, to which Time Warner has replied. community or provides carriage or coverage of sport- ing and other events of interest to the community; and BACKGROUND (IV) evidence of viewing patterns in cable and 2. Pursuant to §4 of the Consumer noncable households within the areas served by the Protection and Competition Act of 1992 ("1992 Cable cable system or systems in such community.6 Act")2 and implementing rules adopted by the Commission in its Report and Order in MM Docket 92259, commercial 4. The legislative history of this provision indicates that: television broadcast stations are entitled to assert mandatory carriage rights on cable systems located within the station's where the presumption in favor of AD! carriage market. A station's market for this purpose is its "area of would result in cable subscribers losing access to dominant influence" or ADI as defined by the Arbitron local stations because they are outside the ADI in audience research organization.4 An ADI is a geographic which a local cable system operates. the FCC may market designation that defines each television market ex- make an adjustment to include or exclude particular clusive of others, based on measured viewing patterns. communities from a television station's market con- Essentially, each county in the is allocated to sistent with Congress' objective to ensure that televi- a market based on which home-market stations receive a sion stations be carried in the areas which they serve and which form their economic market.

The following communities affected by this petition include: poses of the broadcast multiple ownership rules. Section Bradford (OH 0697 and OH 0698); Covington (OH 0555): Piqua 76.55(e) of the Commission's Rules provides that the ADIs to be (OH 0134); Pleasant Hill (OH 0753); Tipp City (OH 0832); West used for purposes of the initial implementation of the man- Milton (OH 0808); St. Paris (OH 0700); Christiansburg (OH datory carriage rules are those published in Arbitron's 1655); Mechanicsburg (OH 0635): Sidney (OH 1002 and OH 1991-1992 Television Market Guide. 0051); Springfield (OH 0793, OH 0947, OH 1063); Troy (OH Because of the topography involved, certain counties are t)646); Urbana (OH 0607); West Liberty (OH 0636): and Yellow divided into more than one sampling unit. Also, in certain Springs (OH 1060) (collectively known as "the communities"). circumstances, a station may have its home county assigned to These communities are located in Clark. Greene, Miami,and art ADI even though it receives less than a preponderance of the Shelby Counties, Ohio. 2 audience in that county. For a more complete description of Pub. L. No. 102-385. 106 Stat. 1460 (3992). how counties are allocated, 8 FCC Rcd 2965, 2976-2977 (1993). see Arbitron's Description of 1vfeth- " odology. Section 6l4(h)(I)(C) of the 1992 Cable Act specifies that a 6 Communications Act of 1934, as amended, §6l4(h)(l)(C)(ii), broadcasting station's market shall be determined in the man- 47 U.S.C. 534(h)O)(C)Ci). ner provided in i73.3555(d)(3)(i) of the Commission's Rules, as in effect on May 1, 1991. This section of the rules, now redesignated §73.3555(e)(3)(i), refers to Arbitron's ADI for pur-

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11 FCC Rcd No. 6 Federal Communications Commission Record DA 96-148

MARKET FACTS AND ARGUMENTS OF THE PARTIES 7. In its petition for special relief, Time Warner seeks to [This subsection] establishes certain criteria which the delete the communities from WKOI-TV's ADI so that Time Commission shall consider in acting on requests to Warner's Dayton ADI cable systems in western Ohio will modify the geographic area in which stations have not have to carry that station's signal. Time Warner be- signal carriage rights. These factors are not intended lieves that mandatory carriage of WKOI-TV in the commu- to be exclusive, but may be used to demonstrate that nities does not serve the interests of localism intended by a community is part of a particular station's market.7 Congress, and that the station fails to satisfy any of the four market factors set forth in the 1992 Cable Act and the 5. The Commission provided guidance in its Report and Commission's Rules. Order in MM Docket 92-259, supra, to aid decision making 8. With regard to the historic carriage factor, the oper- in these matters, as follows: ator asserts that WKOI-TV was never carried in any of the communities)' As such, removing the communities from For example, the historical carriage of the station WKOI-TV's ADI would be consistent with Congressional could be illustrated by the submission of documents intent because there would be no disruption to established listing the cable system's channel line-up (e.g., rate viewing patterns, nor would it deprive WKOI-TV of any cards) for a period of years. To show that the station existing cable audience in the communities. Petitioner also provides coverage or other local service to the cable alleges that WKOI-TV does not provide sufficient coverage community (factor 2), parties may demonstrate that or adequate local service to the communities. The operator the station places at least a Grade B coverage contour notes that 12 out of the 15 communities subject to this over the cable community or is located close to the petition fall outside the station's Grade B contour, and in community in terms of mileage. Coverage of news or one instance, the Grade B contour covers only a part of a other programming of interest to the community community)2 In addition, the average distance from Rich- could be demonstrated by program logs or other mond, Indiana, WKOI-TV's , to the cable descriptions of local program offerings. The final fac- headends serving the communities is more than 50 miles)3 tor concerns viewing patterns in the cable commu- As for programming, Time Warner states that WKOI-TV nity in cable and noncable homes. Audience data does little more than retransmit the TBN (Trinity Broad- clearly provide appropriate evidence about this fac- casting Network) satellite feed. By broadcasting primarily tor. In this regard, we note that surveys such as those religious programming, contends Time Warner. WKOI-TV used to demonstrate significantly viewed status could caters to a highly specialized audience and the format has be useful. However, since this factor requires us to little appeal for most of Time Warner's subscribers in the evaluate viewing on a community basis for cable and communities. Moreover, the station does not broadcast a noncable homes, and significantly viewed surveys sufficient amount of local programming directed at the typically measure viewing only in noncable house- communities; the sparse original programming WKOI-TV holds, such surveys may need to be supplemented does air, such as "Praise the Lord," is specifically geared with additional data concerning viewing in cable toward Richmond, Indiana residents and not Dayton, Ohio homes.8 residents. As for other stations serving the market, Time Warner states that several Dayton ADI stations, which have been historically carried on the cable system. provide an 6. In adopting rules to implement this provision, the extensive amount of local programming throughout each Commission indicated that changes requested should be broadcast day)4 Finally, the operator notes that WKOI-TV's considered on a community-by-community basis rather level of viewership does not rise to the level of significantly than on a county-by-county basis and that they should be viewed status in any of the counties affected by this peti- treated as specific to particular stations rather than ap- tion. Because WKOI-TV is a station watched by so few plicable in common to all stations in the market.'1 The viewers, requiring carriage of WKOI-TV will not serve the rules further provide, in accordance with the requirements interests or needs of Time Warner's subscribers. of the Act, that a station not be deleted from carriage during the pendency of an ADI change request.1° 9. In its opposition, Trinity generally states that Time Warner's petition has impermissible singled the station out for different treatment from all other Dayton stations by purposefully avoiding compliance with the 1992 Cable Act's must carry objectives vis-a-vis WKOI-TV. Trinity as-

FIR. Rep. No. 628. l02d Cong.. 2d Sess. 97 (1Q92). 12 According to Time Warner, Tipp City and West Milton are 8 FCC Rcd at 2977 (emphasis in original). '1 the only communities entirely within the Grade B contour; 8 FCC Rcd at 2977 n.139. Viewership data cited herein is only parts of Troy fall within WKOI-TV's Grade B contour. county data, rather than community-specific data. However, 3 According to Time Warner's calculations. Richmond is absent evidence that such data is not fairly reflective of viewing about 52 miles from Sidney, about 53 miles from Springfield. in the actual communities in question, we accept such data as about 62 miles from Urbana, and about 38 miles from Troy. probative in cases of this type. See. e.g., RKZ Television, Inc., 8 4 Time Warner notes that the systems carry the following FCC Rcd 8008, 8010 (1993). '° stations licensed to communities in the Dayton, OF! ADI: Tele- 47 C.F.R. §76.59. vision Broadcast Stations WDTN (ABC. Channel 2), WKEF The operator notes that although its system serving Ger- (NBC. Channel 22), WHIO-TV (CBS, Channel 7), and WRGT- mantown, Jefferson Township. and Farmersville. Ohio have TV (Ind., Channel 45). never carried WKOI-TV, it does not contest the station's car- riage in these communities because these communities each fall within WKQI-TV's Grade B contour.

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serts that this discrimination is "especially grave" because all children in the Dayton ADI. Finally, Trinity counters the operator has targeted WKOI-TV, a specialty station Time Warner's argument that WKOI-TV's religious format providing religious, inspirational, family oriented, and non- has little appeal in the cable communities by stating that violent programming throughout the Dayton ADI. the 1992 Cable Act was designed to prevent cable operators 10. Trinity asserts that Time Warner's arguments for from making anti-competitive judgements based on the exclusion under the four market modification factors are content of a local television station's signal. Moreover, the either factually erroneous or legally irrelevant, and do not operator's comments are contradictory as three of the cable show that WKOI-TV is not part of the Dayton AD!. Trinity systems carry some type of religious programming station.'7 believes the operator's Grade B contour and geographical According to Trinity, to the one-third of the cable system's distance claims are irrelevant because Congress decided to affected by Time Warner's request, the issue is apparently define a station's market as part of an economic unit, the not whether its cable subscribers find religious program- AD!, not by a strict mileage standard or by a station's ming attractive, but whether the cable subscribers will ever "theoretical" Grade B signal status. Moreover, notes Trin- have the chance to find WKOI-TV's religious programming ity, the Commission has recognized that a station's eco- attractive. nomic relationships are not tied to mileage, because in 12. In its reply, Time Warner counters the arguments certain market hyphenation cases the Commission has held presented by Trinity in its opposition to the petition for that major market communities located as much as 75 special relief. With regard to Trinity's discrimination claim, miles apart are competing in the same market. Trinity Time Warner states that the station's argument distorts the adds that mandatory carriage in areas beyond WKO!-TV's plain language of the 1992 Cable Act's legislative history. If Grade B contour a result sanctioned by Congress and Trinity's position were correct, only an AD! modification recognized by the Commission. Trinity also points out that seeking to exclude every single station within the AD! Time Warner ignores the fact that most of the communities would be non-discriminatory. This is not, Time Warner are located 15-25 miles from Dayton, the largest city in the argues, what Congress intended, nor is it what Congress AD!, and where many of the guests on WKOI-TV's local said. Rather, Congress meant to avoid discrimination be- programming come from. Similarly, the operator does not tween stations sharing the same city of license, not all provide any evidence that advertisers, program syndicators, stations within an entire AD!. or even Arbitron treat "West Milton or Piqua or Bradford 13. As for Trinity's arguments concerning the four statu- as part of anything other than the Dayton . . . AD!." tory factors, Time Warner asserts that Trinity admits that Trinity asserts that the operator distorts the historical car- WKOI-TV has no history of carriage in the communities riage factor because Congress and the Commission meant and that Trinity did not substantiate that WKOI-TV is for this criterion to be used to determine whether an significantly viewed. As for local service, the operator states extension of an AD! is appropriate and not when commu- that.WKOI-TV's programming does not demonstrate a lo- nities should be deleted. Trinity states that Arbitron shows cal nexus sufficient to warrant carriage of WKOI-TV. With that WKOI-TV had a net weekly circulation of 2.8% in the regard to Trinity's comments concerning the irrelevance of Dayton ADI despite not being carried on most cable sys- Grade B contour coverage, Time Warner states that the tems in a heavily cabled market (66.2% cable penetration). failure to provide Grade B coverage is strong evidence th'at Trinity asserts that this is not insignificant viewership for WKO!-TV's signal lacks the strength to reach many of the an independent station largely without cable carriage, and viewers living in the communities. The operator concludes is "powerful evidence that not only Arhitron. hut the mar- by reiterating that the average distance from the commu- ket's television viewers, consider WKO!-TV part of the nities to Richmond, Indiana exceeds 50 miles, and that it is Dayton AD!." illogical to believe that a station so far away from the 11. Trinity also rebuts Time Warner's claim that WKOI- affected communities would be attentive and responsive to TV does not provide local service as the station produces local needs. 11.5 hours per week of local programming. almost all of which is public affairs or other non-entertainment ma- terial.th Trinity argues that Time Warner cannot dispute ANALYSIS AND DECISION that the problems of the communities are "intrinsically" 14. We grant Time Warner's petition to delete the cable different from those of neighboring communities within communities of Mechanicsburg, Sidney, Springfield, St. the ADI such as Greenville or Clayton, Ohio, located just a Paris, Urbana. and West Liberty and deny the request with few miles away . . . ." Trinity states that the programs regard to the cable communities of Bradford, which WKO!-TV broadcasts cover issues such as drugs and Christiansburg, Covington, Piqua, Pleasant Hill, Tipp City, alcohol abuse, education, and crime, all issues which im- Troy. West Milton, and Yellow Springs. WKOI-TV is li- pact all of the communities in the station's AD!, including censed to Richmond, Indiana, a community in the western- those which Time Warner seeks to exclude. In addition. most portion of the Dayton, Ohio AD!. a market that Trinity asserts that WKOI-TV broadcasts programming de- encompasses some 12 counties and is roughly 75 miles signed to meet the educational and instructional needs of long and 70 miles wide. Wayne County. Indiana, in which

15 Trinity refers the Commission's decision to include Mel- are responsive to local needs and a list of guests on its local bou me in the Orlando-Daytona Beach-Melbourne-Cocoa, Flor- responsive television shows, are included in Attachment A to ida market where Melbourne and Daytona Beach are more than Trinity's opposition. 75 miles apart. See Report and Order in MM Docket 84-Ill Trinity notes that the Germantown system carries V!SN on (Orlando, Daytona Beach, Melbourne and Cocoa, Florida), 11)2 channel 11; the Urbana system carries ACTS on channel 6 and FCC2d 1062 (l)R5). 6 the Sidney system carries Television Broadcast Station WTLW The programs that WKOI-TV has broadcast which it states (Ind., Channel 44), Lima, Ohio, a station broadcasting religious programming.

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Richmond is situated, is the only Indiana county in the above. Trinity Broadcasting of Indiana, Inc. shall notify ADI. The station's studio is located in Richmond, Indiana, Time Warner in writing of its carriage and channel posi- which is about 35 miles west of Dayton. The station's tion elections, (76.56, 76.57, 76.64(f) of the Commis- , however, is located in Collinsville, Ohio, about sion's Rules), within thirty (30) days of the release date of 35 miles southwest from Dayton but located in Butler this Memorandum Opinion and Order with respect to the County, which is in the AD! directly to the cable system(s) serving the communities of Bradford, south of Dayton. This unique geographical circumstance Christiansburg, Covington, Piqua, Pleasant Hill, Tipp City, here plays a significant role in our decision. Troy, West Milton, and Yellow Springs, OH. Time Warner 15. We believe that Time Warner has, in part, met the shall come into compliance with the applicable rules with- 1992 Cable Act's market modification test with regard to in sixty (60) days of such notification. more than one-third of the cable communities. We note in 18. This action is taken pursuant to authority delegated this instance that Trinity selected to place WKOI-TV's by §0.321 of the Commission's Rules, 47 C.F.R. §0.32 1. transmitter in Collinsville, which is in the Cincinnati AD! rather than the Dayton AD!, far south of the six commu- FEDERAL COMMUNICATIONS COMMISSION nities we have excluded today. The placement of the trans- mitter in the Cincinnati AD!, nearly 30 miles southeast of its city of license, was an apparent attempt to serve both core markets of the Dayton and Cincinnati ADIs. For example, the station's Grade A contour covers the Cin- William H. Johnson cinnati AD! counties of Butler, Warren, Hamilton, and Union, and its Grade B contour fully covers the counties Deputy Chief, Cable Services Bureau of Boone, Kenton, Campbell, and Clermont, as well as most of Fayette and Ohio counties. In contrast, the sta- tion's Grade A contour fully covers only Preble County and 9/10th of Montgomery County in the Dayton AD!. The station's Grade B contour also only partially covers Darke, Miami, and Greene Counties in the Dayton AD!. Even Wayne County, in which the station's city of license is located, is not fully covered by the station's Grade B con- tour. As a result of WKOI-TVs placement of its antenna, the six communities we have excluded today are not cov- ered by the station's Grade B contour. 16. Taking the above into consideration, we believe that the operator's deletion request regarding the above six communities appears to be a legitimate request to redraw AD! boundaries to make them congruous with market realities. Moreover; while generally not relevant in market deletion cases, we conclude that WKOI's lack of historical carriage is of evidential significance here because it but- tresses our finding of the station's lack of service to the six northern communities at issue.'8 We decline, however, to delete Bradford, Christianshurg. Covington. Piqua. Pleasant Flill, Tipp City, Troy. West Milton. and Yellow Springs from the Dayton AD! vis-a-vis WKOI-TV because these communities are within, or on the very fringe, of WKOI- TV's Grade B contour. In making this decision, we ac- knowledge that Time Warner noted that it (lid not ask the Commission to delete the communities of Germantown. Jefferson Township. and Farmersville, even though the station's signal was not historically carried there, because they each fell within the station's Grade B contour.

ORDERING CLAUSES 17. Accordingly. IT IS ORI)ERED. 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" (CSR- 39()5-A) filed June 2, 1993, by Time Warner Cable IS GRANTED, in part, and DENIED, in part as indicated

See Greater Cablevision. Inc., It) FCC Rcd t7R8 coverage of the cable communities and because Atlantic City. (1995) (granting the operator's request to delete WWAC from the station's city of license, was about 55 miles away from the Philadelphia ADI vis-vis its Philadelphia cable system be- Philadelphia). cause the station was technically incapable of providing any

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