Federal Communications Commission Record DA 95-892

10 FCC Red No. 9 Federal Communications Commission Record DA 95-892

BACKGROUND Before the 2. Pursuant to §4 of the Cable Television Consumer Federal Communications Commission Protection and Competition Act of 1992 ("1992 Cable Washington, D.C. 20554 Act"]5 and implementing rules adopted by the Commission in its Report and Order in MM Docket 92-2S9,6 a commer cial television broadcast station is entitled to assert man In re: datory carriage rights on cable systems located within the station's market. A station's market for this purpose is its DeSoto Broadcasting, Inc. CSR-3899-A "area of dominant influence," or ADI, as defined by the Arbitron audience research organization.7 An ADI is a Venice, Florida geographic market designation that defines each television market exclusive of others, based on measured viewing For Modification of Station patterns. Essentially, each county in the United States is WBSV-TV's ADI 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 MEMORANDUM OPINION AND ORDER and cable television viewing are included.8 3. Under the Act, however, the Commission is also di Adopted: April 19, 1995; Released: April 27, 1995 rected to consider changes in ADI areas. Section 614(h) provides that the Commission may: By the Cable Services Bureau: with respect to a particular television broadcast sta communities within its tele INTRODUCTION tion, include additional vision market or exclude communities from such 1. DeSoto Broadcasting, Inc. ("DeSoto Broadcasting" or station's television market to better effectuate the "WBSV-TV"), licensee of Station WBSV-TV (Ind., Channel purposes of this section. 62), Venice, Florida, has filed the above-captioned petition for special relief seeking to include cable communities in considering such requests, the 1992 Cable Act provides Charlotte County,1 Lee County,2 DeSoto County,3 and In Manatee County, Florida (collectively known as "the Com that: munities") within the Sarasota, Florida "area of dominant influence" (ADI) for the purpose of obtaining carriage the Commission shall afford particular attention to under the Commission's cable television mandatory broad the value of localism by taking into account such cast signal carriage rules. WTOG-TV, Inc. ("WTOG"), li factors as- censee of Television Broadcast Station WTOG (Ind., (I) whether the station, or other stations located in Channel 44), St. Petersburg, Florida, and FCVS Commu the same area, have been historically carried on the nications ("FCVS" or "WEVU"), licensee of Television cable system or systems within such community; Broadcast Station WEVU (ABC, Channel 26), Naples, Flor ida, filed oppositions to the petition for special relief. (II) whether the television station provides coverage WBSV-TV filed a reply to the oppositions. or other local service to such community; (III) whether any other television station that is eli gible to be carried by a cable system in such commu nity in fulfillment of the requirements of this section

1 In Charlotte County the cable communities are those served Florida, serving Ellenton, northern portions of Manatee County, by Storer Cable TV of Florida, Inc., serving Port Charlotte, Palmetto, and Parrish; and Storer Cable TV of Florida, Inc., unincorporated areas of Charlotte County, Punta Gorda, Wind serving Longboat Key (portions of which are in Sarasota Coun mill Village and Rotunda; Cable Two, Inc., serving ty) and portions of Manatee County. unincorporated areas of Charlotte County; Sunstate Cable Sys 5 Pub. L. No. 102-385, 106 Stat. 1460 (1992). tems, Inc., serving Lake Suzy Apartments and Newport Apart 6 8 FCC Red 2965, 2976-2977 (1993). ments; and Cablevision of Cape Coral, serving Punta Gorda. 7 Section 4 of the 1992 Cable Act specifies that a commercial 2 The cable communities in Lee County are those served by broadcasting station's market shall be determined in the man Storer Cable TV of Florida Inc., which serves Boca Grande, ner provided in §73.3555(d)(3)(i) of the Commission's Rules, as Lemon Bay Isles, Rotunda in Charlotte County and in effect on May 1, 1991. This section of the rules, now unincorporated areas of Englewood (half in Sarasota County redesignated §73.3555(e)(3)(i), refers to Arbitron's ADI for pur and half in Charlotte County). poses of the broadcast multiple ownership rules. Section 3 In DeSoto County the cable communities are those served by 76.55(e) of the Commission's Rules provides that the ADIs to be Storer Cable TV of Florida, Inc., serving Arcadia, portions of used for purposes of the initial implementation of the man DeSoto County and unincorporated areas of the county; USA datory carriage rules are those published in Arbitron's Cablesystems, Inc., serving East Arcadia; Telesat Cablevision, 1991-1992 Television Market Guide. Inc., serving Arcadia and unincorporated areas of DeSoto Coun 8 Because of the topography involved, certain counties are ty; and Sunstate Cable Systems, Inc., serving portions of DeSoto divided into more than one sampling unit. Also, in certain County. circumstances, a station may have its home county assigned to 4 The cable communities are those served by Paragon Commu an ADI even though it receives less than a preponderance of the nications, serving Bradenton, Anna Maria, Bradenton Beach, audience in that county. For a more complete description of Holmes Beach, and northern portions of Manatee County; Uni how counties are allocated, see Arbitron's Description of Meth versal Cablevision, serving Bradenton; Cablevision Industries of odology.

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provides news coverage of issues of concern to such holds, such surveys may need to be supplemented community or provides carriage or coverage of sport with additional data concerning viewing in cable ing and other events of interest to the community; homes." and (IV) evidence of viewing patterns in cable and 6. In adopting rules to implement this provision, the noncable households within the areas served by the Commission indicated that changes requested should be cable system or systems in such community.9 considered on a community-by-community basis rather than on a county-by-county basis, and that they should be 4. The legislative history of this provision indicates that: treated as specific to particular stations rather than ap plicable in common to all stations in the market. 12 The rules further provide, in accordance with the requirements where the presumption in favor of ADI carriage of the 1992 Cable Act, that a station not be deleted from would result in cable subscribers losing access to carriage during the pendency of an ADI change request. 13 local stations because they are outside the ADI in 7. Adding communities to a station's ADI generally en which a local cable system operates, the FCC may titles that station to insist on cable carriage in those com make an adjustment to include or exclude particular munities. However, this right is subject to several communities from a television station's market con conditions: 1) a cable system operator is generally required sistent with Congress' objective to ensure that televi to devote no more than one-third of the system's activated sion stations be carried in the areas which they serve channel capacity to compliance with the mandatory signal and which form their economic market. carriage obligations; 2) the station is responsible for delivering a good quality signal to the principal headend of ****** the system; 3) indemnification may be required for any increase in copyright liability resulting from carriage; and 4) the system operator is not required to carry the signal of [This subsection] establishes certain criteria which the any station whose signal substantially duplicates the signal Commission shall consider in acting on requests to of any other local signal carried, or the signal of more than modify the geographic area in which stations have one local station affiliated with a particular broadcast net signal carriage rights. These factors are not intended work. If, pursuant to these requirements, a system operator to be exclusive, but may be used to demonstrate that elects to carry the signal of only one such duplicating a community is part of a particular station's signal, the operator is obliged to carry the station from the market. 10 ADI whose city of license is closest to the principal headend of the cable system. 14 Accordingly, based on the 5. The Commission provided guidance in MM Docket specific circumstances involved, the addition of commu 92-259, supra, to aid decision making in these matters, as nities to a station's ADI may guarantee it cable carriage follows: and specific channel position rights, or may simply provide the system operator with an expanded list of must-carry signals from which to choose (i.e., when the system has For example, the historical carriage of the station used up its channel capacity mandated for broadcast signal could be illustrated by the submission of documents carriage, or determined which of duplicating network affili listing the cable system's channel line-up (e.g., rate ated stations are entitled to carriage priority). 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 MARKET FACTS AND ARGUMENTS the station places at least a Grade B coverage contour OF THE PARTIES over the cable community or is located close to the community in terms of mileage. Coverage of news or 8. The Florida communities that WBSV-TV seeks to add other programming of interest to the community to its ADI are located in DeSoto and Manatee Counties, could be demonstrated by program logs or other which are in the Tampa-St. Petersburg, Florida ADI, and descriptions of local program offerings. The final fac in Charlotte and Lee Counties, which are in the Fort tor concerns viewing patterns in the cable commu Myers-Naples, Florida ADI. WBSV-TV is located in Sara- nity in cable and noncable homes. Audience data sota County, which, standing alone, comprises the Sarasota clearly provide appropriate evidence about this fac ADI. Manatee, DeSoto and Charlotte Counties are adjacent tor. In this regard, we note that surveys such as those to Sarasota County, and Lee County is immediately south used to demonstrate significantly viewed status could of Charlotte County. Virtually all of the communities in be useful. However, since this factor requires us to question are covered by WBSV-TV's predicted Grade B evaluate viewing on a community basis for cable and contour. noncable homes, and significantly viewed surveys 9. In support of its petition, DeSoto Broadcasting states typically measure viewing only in noncable house that WBSV-TV has been on the air since May 1991, and has been carried on Storer Cable TV's Englewood cable system located in Sarasota, Charlotte, and Lee Counties and

9 47 U.S.C. §534(h)(l)(C)(ii). 12 MM Docket No. 92-259, 8 FCC Red at 2977, 2977 n.139. 10 H.R. Rep. 102-628, 102d Cong., 2d Sess. 97 (1992). 13 47 C.F.R. §76.59. 11 Id. at 2977 (emphasis in original). 14 MM Docket No. 92-259, 8 FCC Red at 2981.

4492 10 FCC Red No. 9 Federal Communications Commission Record DA 95-892

Paragon Communication's Bradenton cable system located no basis for Commission action, because Congress chose to in Manatee County since 1991. WBSV-TV asserts that due use viewing patterns to determine carriage rights and not to its short on-air history and the difficulties UHF indepen MSAs. dent stations traditionally face, the focus on historic car 11. WEVU in its opposition states that the Ft. Myers- riage is better placed on a similarly situated station. Naples ADI in which it is licensed has been historically WBSV-TV points to WWSB (ABC, Channel 40), Sarasota, stable: for a number of years the market has consisted of Florida as a similarly situated station that has a history of the same five counties (Charlotte, Glades, Hendry and carriage on all of the systems at issue. WBSV-TV notes that Lee). WEVU states that Arbitron assigned DeSoto County it places a Grade B or better service contour over almost to the Tampa-St. Petersburg ADI, while the Nielsen Station all of the communities at issue. WBSV-TV asserts that it Index assigned DeSoto to the Ft. Myers-Naples DMA de broadcasts news, sports, and local charitable events of inter spite the fact that Ft. Myers' stations had an aggregate 58 est to the Communities. Moreover, WBSV-TV provides share in DeSoto. WEVU does not object to WBSV-TV's closed captioned news which is not provided by other area request to include Manatee County in its market because stations and alleges that approximately 20 percent of Char the communities in Manatee have natural ties to Sarasota. lotte County need such assistance. WBSV-TV states that it WEVU states that WWSB recognized that Charlotte County has spent substantial sums on advertising and marketing its is not in its market when it requested Commission au station in the communities at issue. With regard to viewing thorization in 1979 to relocate its transmitter northward. patterns, WBSV-TV submits 1992-93 Arbitron data for WEVU asserts that it is not a quirk that Charlotte and Lee Charlotte County to demonstrate significant viewership. 15 Counties are not part of the Sarasota ADI. Charlotte, In addition, WBSV-TV submits a petition signed by resi WEVU claims, is not a fringe county separated from the dents of Port Charlotte and Punta Gorda in Charlotte major metropolitan area of the market by mountains, but County and Arcadia in DeSoto County requesting Storer is an integral part of the Ft. Myers-Naples market. WEVU Cable to carry WBSV-TV. Finally, DeSoto Broadcasting also notes that WBSV-TV is not significantly viewed in notes that with respect to Metropolitan Statistical Areas Charlotte by its own data, and that WBSV-TV presents no (MSAs), which are defined by Office of Management and data for Lee or DeSoto Counties. Budget for federal statistical use, the OMB combined the 12. In reply, WBSV-TV states that WWSB's decades old Sarasota MSA and the Bradenton MSA, relying on stan notion of its market is not dispositive of another station's dards which emphasize that the two areas are linked so market. In fact, WBSV-TV notes, WWSB has recently filed cially and economically. Therefore, asserts WBSV-TV, the a petition to add Charlotte communities to its market. In fact that Bradenton and Sarasota are now a combined MSA response to WTOG, WBSV TV states that the differences supports its petition. between it and WWSB do not diminish their similarity 10. WTOG, in opposition to WBSV-TV's petition, argues because they are located in the same county and both that there is no support for treating WWSB as similarly stations' must-carry market is artificially limited to a single situated to WBSV-TV. WTOG notes that the two stations county. WBSV-TV argues that the purpose of the market are licensed to different cities (WWSB to Sarasota and redefinition is to correct inaccurate reflections of the area WBSV-TV to Venice), that WWSB is an ABC affiliate in which a station is entitled to carriage and minimizing while WBSV-TV is an independent station, and that WWSB subscriber disruption is only a component of this require achieves a significantly higher share of viewers in Sarasota ment. WBSV-TV asserts that its must-carry zone does not County than WBSV-TV. Therefore, WTOG argues, cable reflect its true service area. WBSV-TV notes that its Grade carriage of WWSB cannot justify WBSV-TV's request. B coverage is particularly relevant under the Commission's WTOG further argues that the purpose of redefining a rules, and further notes that the most distant community station's market is to correct anomalies so as to minimize WBSV-TV seeks to add, Arcadia, is only 37 miles from disruption to viewers, and not to assist fledgling stations to Venice, WBSV-TV's city of license. Finally, WBSV-TV con gain cable carriage. WTOG asserts that Grade B coverage tends that the purpose of market redefinition is to correct of the Communities is not enough, and that WBSV-TV anomalies due to the rigid ADI borders. WBSV-TV main fails to demonstrate how it meets the specific needs of the tains this is particularly relevant here because its current Communities. WTOG notes that WBSV-TV does not pro ADI barely extends beyond its Grade A contour. vide any viewing data for Lee, Manatee, or DeSoto Coun ties, and that even in Charlotte County the station's viewing is dismal. WTOG contends that a shared MSA is

15 For an independent station to be deemed significantly (NEC, Ch. 20) 18 81 viewed in a community or a county, it must achieve in WEVU (ABC, Ch. 26) 7 63 noncable homes a share of viewing hours of at least 2 percent WFTX (Fox. Ch. 36) 8 65 (total week hours) and net weekly circulation of at least 5 percent. 47 C.F.R. § 76.5(i). According to Arbitron's survey, Tampa-St. Petersburg Television County Coverage: Florida 1992-93 non-cable coverage WFLA-TV (NBC, Ch. 8) 4 29 for Charlotte County is as follows: WTVT (CBS. Ch. 13) 4 26 WFTS (Fox, Ch. 28) 2 21 ADI and Station Total Share Net Weekly WTOG (Ind., Ch. 44) 2 27 Circulation Sarasota Fort Myers-Naples WWSB (ABC, Ch. 40) 4 40 WBSV-TV (Ind., Ch. 62) 2 29 WINK-TV (CBS, Ch. II) 26 90 WBBH-TV

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ANALYSIS AND DECISION we do not feel that this is a serious distinction in a single- 13. We shall grant DeSoto Broadcasting's petition. county ADI. With respect to the third factor, we believe WBSV-TV is in the unusual position of being assigned to a that Congress did not intend this to be a bar to a station's single county ADI, yet is so close to the communities in ADI claim whenever other stations could also be shown to the neighboring ADIs that its City Grade service contour serve the communities at issue. Rather, we believe that this extends far into these other markets. The Commission's criterion was intended to enhance a station's claim where it market modification process established pursuant to could be shown that other stations do not serve the com §614(h)(l)(C) of the Communications Act allows stations munities at issue. Under such circumstances, a denial of to add or delete communities from their ADI to reflect carriage rights to the claiming station could deprive cable their true marketplace. To aid in the Commission's deter viewers of any broadcast signals that might provide pro mination the Act sets out four factors indicative of local gramming geared to their communities. Because other sta ism. These factors, however are not exhaustive; the tions do appear to serve the cable communities at issue, petitioner may introduce additional evidence to demon this enhancement factor would not appear applicable. strate that the communities are part of the station's local 15. As additional support for its request WBSV-TV notes market. 16 Arbitron places television stations in ADIs ac that Bradenton in Manatee County and Sarasota are in a cording to the viewing patterns of those stations in each shared metropolitan statistical area (MSA). Since a shared county. However, the Commission has noted that viewing MSA requires evidence of economic and social links be data may not always provide sufficient evidence of a sta tween the two areas, we believe that, in this instance, it tion's local market. In the case of a new station, viewing provides further evidence of the close economic connection patterns can take up to three years to establish,17 or in the between Manatee County and Sarasota County and com case of specialty station the audience is typically limited.18 bined with the signal coverage to these communities in Because WBSV-TV is a new station, it is appropriate to dicates that the natural market for WBSV-TV extends into rely on other evidence of the station's local market to Manatee County. We find that the close proximity and the determine whether a particular community should be Grade B to City Grade coverage of the communities in added to its market. Charlotte and Lee County weigh heavily in favor of includ 14. We find that WBSV-TV has demonstrated that the ing these communities into the WBSV-TV's market. More Communities are part of its local market. The fact that over, the fact that cable systems in Manatee and Charlotte WBSV-TV places at minimum a Grade B service contour, Counties extend into Sarasota County demonstrate that and in many cases a Grade A or City Grade service con these communities are local to Sarasota. While the record tour, over the Communities is compelling evidence that to demonstrate viewing patterns or historic carriage is in WBSV-TV provides service to these communities. As we sufficient due to WBSV-TV's relative youth, we believe that noted in paragraph 5, supra, the presence of a Grade B WBSV-TV has demonstrated that WBSV-TV is local to the contour over a community is generally sufficient to satisfy cable communities at issue. Therefore, we find that inclu this factor. Moreover, the Commission has noted the im sion of the Charlotte, Lee, and Manatee County cable portance of a City Grade signal in determining local cov communities listed in notes one, two, and four, supra, is erage. 19 We also note that the furthest community at issue justified.21 is only 37 miles from WBSV-TV's city of license. We 16. With respect to DeSoto County, we find that WBSV- believe that less weight should be placed on the fourth TV has also demonstrated that the communities therein statutory factor in this case because WBSV-TV has been should be included in its market. We note that the com on-air only since May of 1991. We believe that there has munities in question in DeSoto County are within WBSV- been insufficient time for WBSV-TV to garner substantial TV's Grade B contour, and are in close proximity to the levels of viewership in all of these counties, although it station's home-county ADI. Moreover, just as in the other clearly has begun to do so in Charlotte County. With counties, WBSV-TV has presented evidence of its discrimi respect to historic carriage, WBSV-TV has shown that it is natory carriage treatment. Though viewership evidence is historically carried on one major cable system in Charlotte lacking, as we said in paragraph 14, supra, we find that this County and one major cable system in Manatee County. is of lesser importance in the case of a new station such as However, WBSV-TV has also demonstrated that WWSB, WBSV-TV. Therefore, we find that grant of WBSV-TV's the other Sarasota ADI licensee, has historically been car request to modify its market to include the DeSoto County ried by all the cable systems in question. This is precisely cable communities listed in note three, supra, in the sta the situation the 1992 Cable Act was designed to remedy.2" tion's ADI is justified. This is even a more compelling consideration in cases such 17. We note, finally, that the system carrying WBSV-TV as the one before us in which the two stations' Grade B in Charlotte, Storer Cable TV of Florida in Charlotte and contours overlap significantly. While WBSV-TV and Lee Counties, also serves Sarasota County. Likewise, the WWSB are licensed to different cities in the Sarasota ADI, Storer's Longboat Key cable system, although not carrying

16 MM Docket 92-259, 8 FCC Red at 2977. recon. denied, 60 FCC 2d 661 (1976). 17 We have previously stated in the context of evaluating 19 See In Re Applications of PZ Entertainment Partnership, viewing data that it should be taken into account that stations L.P., 6 FCC Red 1240, 1243 (1991). See also 47 C.F.R. §73.685. can take up to three years to establish their viewing patterns. 20 See Act III Broadcasting of Nashville, Inc.. 8 FCC Red 8544, That is why §76.54 of our rules allows viewership data from the 8546(1993). first three years of operation. 21 This determination is subject to all generally applicable 18 Specialty stations, though limited in viewership, are capable limitations on signal carriage rights, including copyright liabil of "offer[ing| desirable diversity of programming ....** First ity, channel capacity, and program duplication. See paragraph 7, Report and Order in Docket 20553, 58 FCC 2d 442, 452 (1976), supra.

4494 io FCC Red NO. 9 Federal Communications Commission Record DA 95-892

WBSV-TV, serves communities in both Manatee and Sara- sota Counties. The Commission has determined that a ca ble system whose communities straddle more than one ADI must carry the local television stations from both markets, unless the operator can technically segregate the channels on a community-by-community basis to reflect location of the community within a particular ADI.22 Therefore, even in the absence of a market modification request, Storer's Englewood and Longboat Key systems are required to carry WBSV-TV, unless Storer can technically deliver a different channel line-up that includes WBSV-TV to those portions of Englewood and to those portions of Longboat Key in Sarasota County.

ORDER 18. In view of the foregoing, we find that grant of DeSoto Broadcasting's petition is in the public interest. 19. Accordingly, IT IS ORDERED, pursuant to §614 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 June 2, 1993 by DeSoto Broadcasting, Inc. IS GRANTED. This change shall be effective in accordance with the following schedule: DeSoto Broadcasting shall notify the cable sys tems in question in writing of its carriage and channel position elections, (§§76.56, 76.57, 76.64(f) of the Commis sion's Rules), within thirty (30) days of the release date of this Memorandum Opinion and Order. The affected cable systems shall come into compliance with the applicable rules within 60 days of such notification. 20. This action is taken by the Cable Services Bureau pursuant to authority delegated by §0.321 of the Commis sion's rules.

FEDERAL COMMUNICATIONS COMMISSION

William H. Johnson Deputy Chief, Cable Services Bureau

22 MM Docket No. 92-259, 8 FCC Red at 2975-76.

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