Federal Communications Commission Record 10 FCC Red No

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. Rep. 102-628, 102d Cong., 2d Sess. 97 (1992). 1 Id. at 2977 (emphasis in original). 8 MM Docket No. 92-259, 8 FCC Red at 2977, 2977 n.139. 9 47 C.F.R. §76.59. 10 MM Docket No. 92-259, 8 FCC Red at 2981.

4497 DA 95-891 Federal Communications Commission Record 10 FCC Red No. 9

10. In support of its claims that WUHF has a long the state, to the north and west of several lengthy lakes. history of both cable and noncable viewing in the Commu One of these lakes, Seneca Lake, creates a natural barrier nities, the station submits Nielsen data to demonstrate its between the Communities and Syracuse, the ADI to which large viewing audience in Yates County. According to the Communities are assigned, and a natural link between Nielsen, County/Coverage Study, County Summary: New Rochester and the Communities. The Communities are York 1993, viewing of Rochester and Syracuse commercial closer to Rochester than to Syracuse, and WUHF—based television stations in Yates County is as follows: on contour prediction calculations—is shown to place a Grade B contour over most of the communities in ques Total Share Total Average tion. Weekly Cume 13. With respect to the statutory factors, we find that WUHF has clearly satisfied the first factor—historic car Syracuse WIXT riage. With respect to the second factor— coverage and (ABC, Channel 9) 19 59 other local service to the cable community—WUHF places WSTM-TV a predicted Grade B contour over only some of the Com (NEC, Channel 3) 10 55 munities. Benton, Italy, Middlesex, and Rushville lie clear WSYT (Fox, Channel 5 35 68) ly within the contour, while Jerusalem andPenn Yan lie on WTVH (CBS, Channel 14 47 its edge. However, the remaining communities in question 5) lie just beyond WUHF's predicted Grade B contour, while Rochester WHEC-TV (NBC, Chan 35 Barrington lies just some 12 miles beyond. We have pre nel 10) viously stated that Grade B coverage or close proximity is WOKR (ABC, Channel 40 sufficient to demonstrate that a station satisfies this factor. 13 13) While clearly certain of the Communities lie a few miles WROC (CBS, Channel 8) 48 beyond WUHF's predicted Grade B contour, they are WUHF clearly more closely proximate to Rochester than to Syra (Fox, Channel 31) 24 cuse. We find that these facts augur for inclusion of the Communities within WUHF's ADI. Finally, WUHF asserts that discontinuance of its historic 14. WUHF's submitted data show that it and other Roch carriage in the Communities would disrupt traditional ester licensees garner substantial viewing in Yates County. viewing patterns of the residents. WUHF's Nielsen data show that the station's share in 11. A-R Cable in its comments states that it operates four noncable homes in Yates County is 2 [in cable homes the systems serving the Communities,11 and has historically station achieves a 4 share] and its average cume is 24. M We carried WUHF as well as other Rochester stations, believ believe that these viewing levels are sufficiently substantial ing that its subscribers share a community of interest with to weigh our analysis of the fourth statutory factor in the Rochester area. However, A-R Cable has been required WUHF's favor. We recognize that this data is county-wide to replace these stations with Syracuse stations because of data, rather than community-specific data. We have stated, Yates County's ADI designation. Given its limited channel however, that absent evidence that such data are not fairly capacity, A-R states that it cannot carry both Fox affiliates. reflective of viewing in the actual communities in question, Because of the limited channel capacity of A-R Cable's we shall accept such data as probative, although not con systems, the must carry rules place continued carriage of clusive, in cases of this type. With respect to the third Rochester stations in jeopardy. A-R Cable does not oppose factor, we believe that Congress did not intend this to be a WUHF's petition, 12 provided that a grant would not require bar to a station's ADI claim whenever other stations could A-R to carry more than one Fox affiliate. 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 ANALYSIS AND DECISION do not serve the communities at issue. Under such cir 12. The inclusion of the Communities within the market cumstances, a denial of carriage rights to the claiming area of WUHF for purposes of the cable television broad station could deprive cable viewers of any broadcast signals cast mandatory signal carriage rules is, considering all of that might provide programming geared to their commu the circumstances presented, consistent with the purposes nities. Because other stations do appear to serve the cable specified in §614(h)(l)(C) of the 1992 Cable Act. WUHF is communities at issue, this enhancement factor would not licensed to Rochester, New York, in the western portion of appear applicable.

11 A-R Cable's Penn Yan system serves Perm Yan, Milo, Jeru 14 In fact, WUHF's county viewing according to this data salem, Benton, Indian Pines and Keuka Park with 36 activated would meet the viewing levels established by the Commission channels. Its Branchport system serves Branchport, Italy and significantly viewed status, in both noncable and in cable Jerusalem with 22 activated channels. Its Gorham system serves homes. As a Fox affiliate, WUHF is considered an independent Rushville and Middlesex in the Syracuse ADI with 23 activated station for significantly viewed status purposes, and must channels, though most subscribers to this system reside in On achieve in noncable homes a share of viewing hours of at least tario County in the Rochester ADI. Its Hammondsport system 2% (total week hours) and a net weekly circulation of at least serves Barrington with 31 activated channels. 5% to be deemed to be significantly viewed in a community or 12 However, A-R Cable states that WUHF has not shown that a county. 47 C.F.R. §76.5(i). the station adequately covers issues specifically related to the 15 See, e.g., RKZ Television, Inc., 8 FCC Red 8008, 8010 (1993). residents of the Communities, or that other qualified must See also paragraph 14, infra. carry stations fail to provide such coverage. 13 MM Docket No. 92-259, 8 FCC Red at 2977. See also paragraph 5, supra.

4498 10 FCC Red NO. 9 Federal Communications Commission Record DA 95-891

15. The portion of the Cable Act allowing for modifica tion of ADIs "is intended to permit the modification of a station's market to reflect its individual situation." 16 In the instant case, taking into account the totality of the cir cumstances involved, including in particular the topog raphy of the area and the evidence submitted by WUHF demonstrating that Yates County is economically linked with the Rochester market, we conclude that given WUHF's "individual situation," inclusion of the commu nities in question is consistent with the value of localism and will better effectuate the purposes of the carriage rules. We note, too, that A-R Cable, the cable operator serving the Communities, has itself stated that its subscribers share a community of interest with the Rochester area, and that A-R Cable has long determined, even during the absence of mandatory signal carriage requirements, that the option to carry WUHF (as well as other Rochester licensees) is war ranted. In view of the totality of the circumstances pre sented by both WUHF and by A-R Cable, we find that grant of WUHF's petition is justified. With respect to A-R Cable's concern that it not be required to carry more than one Fox affiliate, we reiterate that no cable operator is required to carry the signal of any station whose signal substantially duplicates the signal of any other local signal carried. In addition, cable operators are generally required to devote no more than one-third of their systems' ac tivated channel capacity to compliance with the mandatory signal carriage obligations. See paragraph 7, supra.

ORDER 16. In view of the foregoing, we find that grant of WUHF's petition is in the public interest. 17. 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 August 2, 1993 by Act III Broadcasting of Rochester, Inc. IS GRANT ED. This change shall be effective in accordance with the following schedule: Act III Broadcasting of Rochester, Inc. shall notify the cable systems in question in writing of its carriage and channel position elections, (§§76.56, 76.57, 76.64(f) of the Commission'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. 18. 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

16 MM Docket 92-259, 8 FCC Red at 2977.

4499