10 FCC Red No. 20 Federal Communications Commission Record DA 95-1852

viewing hours in the county. For purposes of this calcula Before the tion, both over-the-air and cable television viewing are Federal Communications Commission 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) In re: provides that the Commission may:

News Press and Gazette CSR-4125-A with respect to a particular television broadcast sta Wilmington, North Carolina 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 WECT-TV©s ADI purposes of this section. In considering such requests, the Act provides that: MEMORANDUM OPINION AND ORDER the Commission shall afford particular attention to Adopted: August 18, 1995; Released: September 18,1995 the value of localism by taking into account such factors as By the Deputy Chief, Cable Services Bureau: (I) whether the station, or other stations located in the same area, have been historically carried on the cable system INTRODUCTION or systems within such community: 1. In the above-captioned proceeding, News Press and Gazette ("News Press"), licensee of Station WECT-TV (II) whether the television station pro (NBC, Ch. 6), Wilmington, NC (hereinafter "WECT-TV") vides coverage or other local service to has requested the Commission to include the communities such community; of Falcon, Fayetteville, Fort Bragg, Godwin. Hope Mills. (III) whether any other television station Pope Air Force Base, Spring Lake. Stedman, and Wade, all that is eligible to be carried by a cable of which are located in Cumberland County. NC. within system in such community in fulfillment the Wilmington, NC, "area of dominant influence" of the requirements of this section pro ("ADI") for the purpose of obtaining mandatory signal vides news coverage of issues of concern carriage rights on the cable system serving those commu to such community or provides carriage nities. FSF TV, Inc., licensee of Station WRDC-TV (NBC. or coverage of sporting and other events Ch. 28), Durham. NC ("WRDC-TV"), filed an opposition of interest to the community; and to the petition, to which WECT-TV filed a reply. (IV) evidence of viewing patterns in ca ble and noncable households within the areas served by the cable system or sys BACKGROUND tems in such community. 5 2. Pursuant to Section 4 of the Cable Television Con sumer Protection and Competition Act of 1992 ("1992 4. The legislative history of this provision indicates that: Cable Act") 1 and implementing rules adopted by the Com mission in its Report and Order in MM Docket 92-259.2 commercial television broadcast stations are entitled to as where the presumption in favor of ADI carriage would sert mandatory carriage rights on cable systems located result in cable subscribers losing access to local stations within the station©s market. A station©s market for this because they are outside the ADI in which a local cable purpose is its "area of dominant influence" or ADI as system operates, the FCC may make an adjustment to defined by the Arbitron audience research organization.3 include or exclude particular communities from a televi An ADI is a geographic market designation that defines sion station©s market consistent with Congress© objective to each television market exclusive of others, based on mea ensure that television stations be carried in the areas which sured viewing patterns. Essentially, each county in the they serve and which form their economic market. United States is allocated to a market based on which home-market stations receive a preponderance of total

1 Pub. L. No. 102-385, 106 Stat. 1460 (19Q2). 1991-1992 Television Market Guide. 2 8 FCC Red 2965, 2976-2977 (1993). 4 Because of the topography involved, certain counties are di 3 Section 614(h)(l)(C) of the 1992 Cable Act specifies that a vided into more than one sampling unit. Also, in certain cir broadcasting station©s market shall be determined in the man cumstances, a station may have its home county assigned to an ner provided in §73.3555(d)(3)(i) of the Commission©s Rules, as ADI even though it receives less than a preponderance of the in effect on May 1, 1991. This section of the rules, now audience in that county. For a more complete description of redesignated §73.3555(e)(3)(i), refers to Arbitron©s ADI for pur how counties are allocated, see Arbitron©s Description of Meth poses of the broadcast multiple ownership rules. Section odology. 76.55(e) of the Commission©s Rules provides that the ADIs to be 5 Communications Act of 1934, as amended, §614(h)(l)(C)(ii), used for purposes of the initial implementation of the man 47 U.S.C. §534(h)(l)(C)(ii). datory carriage rules are those published in Arbitron©s

10331 DA 95-1852 Federal Communications Commission Record 10 FCC Red No. 20

* * * * # one local station affiliated with a particular broadcast net work. If. pursuant to these requirements, a system operator (This subsection] establishes certain criteria which the elects to carry the signal of only a single affiliate of a Commission shall consider in acting on requests to broadcast network, it is obliged to carry the affiliate from modify the geographic area in which stations have within the ADI whose city of license is closest to the signal carriage rights. These factors are not intended principal headend of the cable system. 10 Accordingly, based to be exclusive, but may be used to demonstrate that on the specific circumstances involved, the addition of a community is part of a particular station©s market.6 communities to a station©s ADI may guarantee it cable carriage and specific channel position rights: simply pro vide the system operator with an expanded list of must- 5. The Commission provided guidance in its Report and carry signals from which to choose, i.e., when it has used Order in MM Docket 92-259, supra, to aid decision making up its channel capacity mandated for broadcast signals in these matters, as follows: carriage, or determined which of duplicating network affili ated stations are entitled to carriage priority. For example, the historical carriage of the station could be illustrated by the submission of documents listing the cable system©s channel line-up (e.g., rate MARKET FACTS AND ARGUMENTS OF THE PARTIES cards) for a period of years. To show that the station 8. In its petition. WECT-TV asks the Commission to add provides coverage or other local service to the cable the communities of Falcon. Fayetteville, Fort Bragg. God community (factor 2). parties may demonstrate that win, Hope Mills. Pope Air Force Base, Spring Lake, the station places at least a Grade B coverage contour Stedman. and Wade, all of which are located in Cum over the cable community or is located close to the berland County, NC, to the Wilmington, NC ADI so that community in terms of mileage. Coverage of news or WECT-TV may assert must carry rights on Cablevision of other programming of interest to the community Fayetteville, the cable system serving those communities. could be demonstrated by program logs or other WECT-TV asserts that grant of the modification request descriptions of local program offerings. The final fac would advance Congressional intent because the station has tor concerns viewing patterns in the cable commu been carried by Cablevision since the system©s inception, nity in cable and noncable homes. Audience data and to now exclude the named communities from its mar clearly provide appropriate evidence about this fac ket, would likely result in disruption of service to subscrib tor. In this regard, we note that surveys such as those ers. used to demonstrate significantly viewed status could 9. In support of its request, WECT-TV states that it has be useful. However, since this factor requires us to been carried on Cablevision of Fayetteville, the only cable evaluate viewing on a community basis for cable and system serving the above-referenced communities, since noncable homes, and significantly viewed surveys 1964. With respect to coverage and local service, WECT-TV typically measure viewing only in noncable house states that its Grade B contour wholly encompasses the holds, such surveys may need to be supplemented cable communities and Cumberland County with many of with additional data concerning viewing in cable the communities referenced above also receiving Grade A homes. 7 service. Moreover, to ensure that cable subscribers in these communities have access to the "best possible" signal qual 6. In adopting rules to implement this provision, the ity, the station provides Cablevision with a direct micro Commission indicated that changes requested should be wave feed from its transmitter. WECT-TV also asserts that considered on a community-by-community basis rather it has a commitment to local programming covering news than on a county-by-county basis and that they should be and events important to residents in the cable commu treated as specific to particular stations rather than ap nities. The station includes an exemplary news log from plicable in common to all stations in the market.8 The July, 1993. reflecting the kind of local issues (sports, rules further provide, in accordance with the requirements crimes, weather, and business activities) it covers in its of the Act. that a station not be deleted from carriage newscasts. These news stories were generated by WECT- during the pendency of an ADI change request.9 TV©s Fayetteville news Bureau, which was established in 7. Adding communities to a station©s ADI generally en 1982 and has a full time news and sales staff. WECT-TV titles that station to insist on cable carriage in those com adds that the Raleigh-Durham ADI NBC affiliate has no munities. However, this right is subject to several local news program, thus, it is the only NBC source of conditions: 1) a cable system operator is generally required local news for the cable communities. As for local viewing to devote no more than one-third of its activated channel patterns. WECT-TV provides that 1990-1991 Arbitron fig capacity to compliance with the mandatory signal carriage ures show WECT-TV had a 10 cable share (75% net week obligations, 2) the station is responsible for delivering a ly circulation) and a 13 non-cable share (61% net weekly good quality signal to the principal headend of the system, circulation) in Cumberland County. In 1993-1994, the 3) indemnification may be required for any increase in Arbitron figures show that WECT-TV had a 7 cable share copyright liability resulting from carriage, and 4) the sys (59% net weekly circulation) and a 7 non-cable share tem operator is not required to carry the signal of any (59% net weekly circulation) in Cumberland County. Ac- station whose signal substantially duplicates the signal of any other local signal carried or the signals of more than

6 H.R. Rep. No. 628, 102d Cong., 2d Sess. 97 (1992). 9 47 C.F.R. §76.59. 7 Id. at 2977 (emphasis in original). 10 8 FCC Red at 2981. 8 8 FCC Red at 2977, n.139.

10332 10 FCC Red No. 20 Federal Communications Commission Record DA 95-1852 cording to WECT-TV. the 1990-1991 survey evidences that ANALYSIS AND DECISION it had the third highest ratings of any commercial station 12. WECT-TV has provided sufficient evidence to justify in the Raleigh-Durham ADI. its market modification request and it will accordingly be 10. In its opposition, WRDC-TV submits that the peti granted.12 Turning to the factors specified in the 1992 tion should be denied because WECT-TV does not satisfy Cable Act, we find that WECT-TV has met three of the three of the four statutory criteria necessary for the grant four statutory elements with the historical carriage require of a modification request. WRDC-TV first argues that the ment and viewership showing being particularly notable. information presented in the petition regarding local ser As WECT-TV©s pleading reveals, the station has been con vice by WECT-TV and local viewing patterns is not com tinuously carried on Cablevision of Fayetteville for ap munity-specific. WRDC-TV asserts that the use of proximately 30 years. The fact that the cable operator has county-wide data to support a station©s modification ar continuously carried WECT-TV demonstrates that the rel gument is not appropriate because the Commission would evant cable subscribers value the station and that the sub be "forced to lump together" diverse cable operators and scribers in these communities have been associated with communities, even though the actual circumstances of the the market of the station as viewers for a considerable individual communities and/or systems might dictate dif period of time. ferent treatment for each. WRDC-TV criticizes WECT-TV©s 13. The viewing pattern data in cable and non-cable local programming showing because less than 15% of the households also demonstrates that WECT-TV has a strong local news descriptions actually identified the communities marketplace presence in the cable communities. The sta from which the stories originated. WRDC-TV also asserts tion has a substantial net weekly circulation and share in that WECT-TV has not made any credible showing as to cable and non-cable households in Cumberland County. In how granting must carry status to WECT-TV in the com 1993. for example, WECT-TV©s viewing share in Cum munities would promote the value of localism since berland County was 7 and its net weekly circulation was WRDC-TV and other stations in the Raleigh-Durham ADI 59. WECT-TV©s audience share is also larger than WRDC- provide more comprehensive local programming for the TV©s by two percentage points in Cumberland County. 13 cable communities; in fact, the Raleigh-Durham network With respect to coverage and local service to the cable affiliates had a combined 54 total share in cable homes and communities, we believe that WECT-TV©s local news cov a combined 81 share in non-cable homes in Cumberland erage, as evidenced by its detailed news log. buttresses its County. WRDC-TV also states that it places a Grade B claim that it serves the relevant communities. Moreover, contour over all of Cumberland County and a Grade A the station©s Grade B contour covers all the relevant cable contour over 7 of the 9 cable communities. Finally, communities, with Grade A service available in some of WRDC-TV claims that WECT-TV has "deliberately the same communities. We note the Commission has held mischaracterized" its news programming; while WRDC-TV that Grade B coverage may be used to demonstrate does not air a traditional half-hour news program, it does service. u air 6 five minute news broadcasts every day and has cov 14. With respect to the third factor, we note that WRDC- ered news stories from Fayetteville and other parts of Cum TV indicates that it provides coverage of, and programming berland County on a regular basis. to. the communities and county in question. However, we 11. In its reply, WECT-TV argues that a strict do not believe that Congress intended the third criterion to community-by-community showing for market modifica operate as a bar to a station©s ADI claim whenever other tions as advocated by WRDC is unavailing because the stations could also be shown to serve the communities at Commission has explicitly declined to restrict the types of issue. Rather, we believe that thiscriterion was intended to evidence parties may submit in ADI proceedings. As for enhance a station©s claim where it could be shown that WRDC-TV©s criticism of it local service presentation. other stations do not serve the communities at issue. Under WECT-TV notes that it did not believe it was necessary to such circumstances, a denial of carriage rights to the claim include in its sample of news stories a specific number of ing station could deprive cable viewers of any broadcast references to specific communities. With regard to its char signals that might provide programming geared to their acterization of WRDC-TV©s local news. WECT-TV submits communities. We view WECT-TV©s showing on each of the that its prior statements are still valid - WRDC-TV does other factors is sufficient, and even absent enhancement not broadcast a traditional half-hour news program serving under the third criterion, grant of its request is warranted. the local interests of the cable communities. Finally, with respect to WRDC-TV Grade B contour coverage of Cum berland County, WECT-TV asserts that merely providing Grade B service does not demonstrate a commitment to the provision of local service.

11 WRDC-TV asks that it be granted leave to file its pleading ator is carrying the signal on a voluntary basis, and without more than 20 days after the WECT-TV©s petition was placed on mandatory carriage rights, WECT-TV may be deleted from the public notice. It asserts that it was never served with a copy of systems without legal consequence. the petition and that the Commission©s public reference room ©* The viewership data cited is from Arbitron, Television Coun gave it the incorrect public notice date. For these reasons, ty Coverage reports and, as WRDC-TV points out, is not specific WRDC-TV©s counsel did not learn of the actual public notice to the individual communities involved. However, absent evi date until after formal oppositions were due. Based on these dence that such data is not fairly reflective of viewing in the considerations, WRDC-TV©s opposition will be accepted as time actual communities in question, such data has been accepted as ly filed. probative in cases of this type. " We believe this modification is not moot because the oper " See 8 FCC Red at 2981.

10333 DA 95-1852 Federal Communications Commission Record 10 FCC Red NO. 20

ORDER 15. Accordingly, IT IS ORDERED, 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 filed on October 5, 1993 by News Press and Gazette IS GRANTED. News Press and Gazette shall notify Cablevision of Fayette- ville in writing of its carriage and channel position elec tions, (§§76.56, 76.57. 76.64(f) of the Commission©s Rules), within thirty (30) days of the release date of this Memoran dum Opinion and Order. Cablevision of Fayetteville shall come into compliance with the applicable rules within 60 days of such notification. 16. This action is taken pursuant to authority delegated by §0.321 of the Commission©s Rules.

FEDERAL COMMUNICATIONS COMMISSION

William H. Johnson Deputy Chief. Cable Services Bureau

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