Federal Communications Commission Record 10 FCC Red No
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DA 95-891 Federal Communications Commission Record 10 FCC Red No. 9 receive a preponderance of total viewing hours in the Before the county. For purposes of this calculation, both over-the-air Federal Communications Commission and cable television viewing are included.4 Washington, D.C. 20554 3. Under the Act, however, the Commission is also di rected to consider changes in ADI areas. Section 614(h) provides that the Commission may: In re: with respect to a particular television broadcast sta Act III Broadcasting CSR-4035-A tion, include additional communities within its tele of Rochester, Inc. vision market or exclude communities from such station's television market to better effectuate the For Modification of Television Broadcast purposes of this section. Station WUHF's ADI In considering such requests, the 1992 Cable Act provides that: MEMORANDUM OPINION AND ORDER the Commission shall afford particular attention to Adopted: April 20,1995; Released: April 27, 1995 the value of localism by taking into account such factors as- By the Cable Services Bureau: (I) whether the station, or other stations located in the same area, have been historically carried on the cable system or systems within such community; INTRODUCTION 1. Act III Broadcasting of Rochester, Inc. ["WUHF"], (II) whether the television station provides coverage licensee of Television Broadcast Station WUHF (Fox, or other local service to such community; Channel 31), Rochester, New York, filed the captioned (III) whether any other television station that is eli petition for special relief seeking to include the commu gible to be carried by a cable system in such commu nities of Middlesex, Rushville, Benton, Indian Pines, Jeru nity in fulfillment of the requirements of this section salem, Keuka Park, Milo, Penn Yan, Barrington, provides news coverage of issues of concern to such Branchport, and Italy in Yates County, New York community or provides carriage or coverage of sport (collectively known as "the Communities") within the ing and other events of interest to the community; Rochester, New York "area of dominant influence" (ADI) and for purposes of the cable television mandatory broadcast (IV) evidence of viewing patterns in cable and signal carriage rules. A-R Cable Services - NY, Inc. ["A-R noncable households within the areas served by the Cable"], a cable operator serving the communities in ques cable system or systems in such community.5 tion, filed comments on the petition for special relief. 4. The legislative history of this provision indicates that: BACKGROUND 2. Pursuant to §4 of the Cable Television Consumer where the presumption in favor of ADI carriage Protection and Competition Act of 1992 ["1992 Cable would result in cable subscribers losing access to Act"] 1 and implementing rules adopted by the Commission local stations because they are outside the ADI in in its Report and Order in MM Docket 92-259? a commer which a local cable system operates, the FCC may cial television broadcast station is entitled to assert man make an adjustment to include or exclude particular datory carriage rights on cable systems located within the communities from a television station's market con station's market. A station's market for this purpose is its sistent with Congress' objective to ensure that televi "area of dominant influence," or ADI, as defined by the sion stations be carried in the areas which they serve Arbitron audience research organization.3 An ADI is a and which form their economic market. geographic market designation that defines each television 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 1 Pub. L. No. 102-385, 106 Stat. 1460 (1992). used for purposes of the initial implementation of the man 2 8 FCC Red 2965, 2976-2977(1993). datory carriage rules are those published in Arbitron's 3 Section 4 of the 1992 Cable Act specifies that a commercial 1991-1992 Television Market Guide. broadcasting station's market shall be determined in the man 4 Because of the topography involved, certain counties are ner provided in §73.3555(d)(3)(i) of the Commission's Rules, as divided into more than one sampling unit. Also, in certain in effect on May 1, 1991. This section of the rules, now circumstances, a station may have its home county assigned to redesignated §73.3555(e)(3)(i), refers to Arbitron's ADI for pur an ADI even though it receives less than a preponderance of the poses of the broadcast multiple ownership rules. Section audience in that county. For a more complete description of 76.55(e) of the Commission's Rules provides that, the ADIs to be how counties are allocated, see Arbitron's Description of Meth odology. 5 47 U.S.C. §534(h)(l)(C)(ii). 4496 10 FCC Red No. 9 Federal Communications Commission Record DA 95-891 ****** any station whose signal substantially duplicates the signal of any other local signal carried, or the signal of more than [This subsection] establishes certain criteria which the one local station affiliated with a particular broadcast net Commission shall consider in acting on requests to work. If, pursuant to these requirements, a system operator modify the geographic area in which stations have elects to carry the signal of only one such duplicating signal carriage rights. These factors are not intended signal, the operator is obliged to carry the station from the to be exclusive, but may be used to demonstrate that ADI whose city of license is closest to the principal a community is part of a particular station's market.6 headend of the cable system. 10 Accordingly, based on the specific circumstances involved, the addition of commu nities to a station's ADI may guarantee it cable carriage 5. The Commission provided guidance in MM Docket and specific channel position rights, or may simply provide 92-259, supra, to aid decision making in these matters, as the system operator with an expanded list of must-carry follows: signals from which to choose (i.e., when the system has used up its channel capacity mandated for broadcast signal For example, the historical carriage of the station carriage, or determined which of duplicating network affili could be illustrated by the submission of documents ated stations are entitled to carriage priority). listing the cable system's channel line-up (e.g., rate cards) for a period of years. To show that the station provides coverage or other local service to the cable MARKET FACTS AND ARGUMENTS community (factor 2), parties may demonstrate that OF THE PARTIES the station places at least a Grade B coverage contour 8. The communities at issue are located in Yates County, over the cable community or is located close to the on the western edge of the Syracuse, New York ADI. community in terms of mileage. Coverage of news or WUHF is licensed to Rochester, New York and its ADI other programming of interest to the community borders Yates County immediately to the north. Geographi could be demonstrated by program logs or other cally, Yates County is bounded on the east by Seneca Lake, descriptions of local program offerings. The final fac which cuts off direct access to Syracuse. tor concerns viewing patterns in the cable commu 9. In support of its petition, WUHF states that it has nity in cable and noncable homes. Audience data been carried on the cable systems in the Communities clearly provide appropriate evidence about this fac since 1988 or 1989. WUHF states that the Penn Yan tor. In this regard, we note that surveys such as those Cablevision system carries more Rochester television sta used to demonstrate significantly viewed status could tions than Syracuse stations, and notes that the reference be useful. However, since this factor requires us to points for Rochester are closer to the Communities than evaluate viewing on a community basis for cable and reference points for Syracuse. WUHF asserts that it places a noncable homes, and significantly viewed surveys Grade B contour over the majority of the Communities typically measure viewing only in noncable house and submits a map of its predicted Grade B coverage. holds, such surveys may need to be supplemented WUHF argues that because Seneca Lake blocks access to with additional data concerning viewing in cable jobs, shopping and schools in Syracuse, the topography homes.7 creates a natural link between Rochester and the Commu nities and a natural barrier between the Communities and 6. In adopting rules to implement this provision, the Syracuse. WUHF contends that forty percent of Yates resi Commission indicated that changes requested should be dents commute to jobs outside the county, and more com considered on a community-by-community basis rather muters commute to Rochester than to all Syracuse ADI than on a county-by-county basis, and that they should be counties combined; nearly three-fourths of those commut treated as specific to particular stations rather than ap ers commute to the Rochester ADI. WUHF contends that plicable in common to all stations in the market.8 The these geographic facts make the station's programming and rules further provide, in accordance with the requirements advertising important to residents of Yates County. of the 1992 Cable Act, that a station not be deleted from carriage during the pendency of an ADI change request.9 7. Adding communities to a station's ADI generally en titles that station to insist on cable carriage in those com munities. However, this right is subject to several conditions: 1) a cable system operator is generally required to devote no more than one-third of the system's activated channel capacity to compliance with the mandatory signal 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 6 H.R.