10 FCC Red No. 8 Federal Communications Commission Record DA 95-640

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.5 Washington, D.C. 20554 3. Under the Act. however, the Commission is also di rected to consider changes in ADI area. Section 614(h) provides that the Commission may: In re: with respect to a particular television broadcast sta Busse Broadcasting Corporation CSR-3950-A tion, include additional communities within its tele Lincoln, Nebraska vision market or exclude communities from such station©s television market to better effectuate the For Modification of Stations purposes of this section. KOLN©s and KGIN©s ADI In considering such requests, the Act provides that:

MEMORANDUM OPINION AND ORDER the Commission shall afford particular attention to the value of localism by taking into account such Adopted: March 28,1995; Released: April 4, 1995 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; I. INTRODUCTION 1. In the captioned proceeding, Busse Broadcasting Cor (II) whether the television station provides coverage poration ("Busse"), licensee of Television Broadcast Station or other local service to such community: KOLN (CBS, Channel 10), Lincoln, Nebraska, and of its (III) whether any other television station that is eli satellite, KGIN (CBS. Channel 11), Grand Island, Nebras gible to be carried by a cable system in such commu ka, has requested the Commission to add certain Nebraska nity in fulfillment of the requirements of this section cable communities to the Lincoln-Hastings-Kearney. Ne provides news coverage of issues of concern to such braska area of dominant influence ("ADI") to which both community or provides carriage or coverage of sport stations are currently assigned. 1 Busse©s petition is ing and other events of interest to the community: unopposed. and (IV) evidence of viewing patterns in cable and noncable households within the areas served by the II. BACKGROUND cable system or systems in such community.6 2. Pursuant to §4 of the Cable Television Consumer Protection and Competition Act of 1992 ["1992 Cable 4. The legislative history of this provision indicates that: Act"] 2 and implementing rules adopted by the Commission in its Report and Order in MM Docket 9_©-259,J a commer cial television broadcast station is entitled to assert man The provisions of [this subsection] reflect a recogni datory carriage rights on cable systems located within the tion that the Commission may conclude that a com station©s market. A station©s market for this purpose is its munity within a station©s ADI may be so far removed "area of dominant influence," or ADI, as defined by the from the station that it cannot be deemed part of the Arbitron audience research organization.4 An ADI is a station©s market. It is not the Committee©s intention geographic market designation that defines each television that these provisions be used by cable systems to market exclusive of others, based on measured viewing manipulate their carriage obligations to avoid compli patterns. Essentially, each county in the United States is ance with the objectives of this section. Further, this allocated to a market based on which home-market stations section is not intended to permit a cable system to discriminate among several stations licensed to the

1 The communities are as follows: Brunswick, Clearwater, poses of the broadcast multiple ownership rules. Section Elgin, Neligh. Oakdale, and Orchard (in Antelope County); 76.55(e) of the Commission©s Rules provides that the ADIs to be Bellwood, Brainard. David City, Dwight, Rising City, and Ulys used for purposes of the initial implementation of the man ses (in Butler County); Cook, Sterling, and Tecumseh (in John datory carriage rules are those published in Arbitron©s son County); Creston, Columbus. Duncan. Humphrey, Lindsey. 1991-1992 Television Market Guide. and Monroe (in Platte County); and (in Seward County), Bea 5 Because of the topography involved, certain counties are ver Crossing, Bee. Garland, Goehner, Milford, Pleasant Dale, divided into more than one sampling unit. Also, in certain Seward. Staplehurst, and Utica. circumstances, a station may have its home county assigned to 2 Pub. L. No. 102-385, 106 Stat. 1460 (1992). an ADI even though it receives less than a preponderance of the 3 8 FCC Red 2965. 2976-2977 (1993). audience in that county. For a more complete description of 4 Section 4 of the 1992 Cable Act specifies that a commercial how counties are allocated, see Arbitron©s Description of Meth broadcasting station©s market shall be determined in the man odology. ner provided in §73.3555(d)(3)(i) of the Commission©s Rules, as 6 47 U.S.C. §534(h)(l)(C)(ii). As Congress recognized, "[t]hese in effect on May 1, 1991. This section of the rules, now factors are not intended to be exclusive . . . ." H.R. Rep. redesignated §73.3555(e)(3)(i), refers to Arbitron©s ADI for pur 102-628, 102d Cong., 2d Sess. 97 (1992).

3767 DA 95-640 Federal Communications Commission Record 10 FCC Red No. 8

same community. Unless a cable system can point to III. MARKET FACTS AND BUSSE©S ARGUMENTS particularized evidence that its community is not part 7. The five counties specified by Busse are all located on of one station©s market, it should not be permitted to the eastern border of the Lincoln-Hastings-Kearney ADI. single out individual stations serving the same area At present, the Counties of Butler, Johnson, Platte, and and request that the cable system©s community be Seward are all assigned to the Omaha, Nebraska ADI. deleted from the station©s television market. while Antelope County is part of the ADI for Sioux City, Iowa. According to Busse, all fourteen specified cable com 5. The Commission provided guidance in MM Docket munities in Butler and Seward Counties are located within 92-259, supra, to aid decision making in these matters, as KOLN©s Grade A contour, and the nine specified cable follows: communities in Johnson and Platte Counties are all within KOLN©s Grade B contour. Busse adds that the six specified For example, the historical carriage of the station cable communities in Antelope County are located within could be illustrated by the submission of documents the service area of its 1.000 watt television translator station listing the cable system©s channel line-up (e.g., rate at Neligh (K28AP), and that Lincoln, KOLN©s city of li cards) for a period of years. To show that the station cense, is actually located closer to the listed communities provides coverage or other local service to the cable than is the metro area of their designated ADI©s, Omaha community (factor 2), parties may demonstrate that and Sioux City. the station places a Grade B coverage contour over 8. According to Busse, either KOLN or KGIN is pres the cable community or is located close to the com ently carried by the cable system serving every cable com munity in terms of mileage. Coverage of news or munity it has listed, and Busse notes that 23 of the 30 other programming of interest to the community listed cable communities have carried either KOLN or could be demonstrated by program logs or other KGIN since 1992. Since Lincoln is the state capital, KOLN descriptions of local program offerings. The final fac adds that it has immediate access to the state government tor concerns viewing patterns in the cable commu news that it reports daily, as well as the news it broadcasts nity in cable and noncable homes. Audience data concerning agriculture, including weather and farm market clearly provide appropriate evidence about this fac reports. In addition, since there are no major league profes tor. In this regard, we note that surveys such as those sional teams in the area, Busse©s emphasis on coverage of used to demonstrate significantly viewed status could the University of Nebraska teams and of area high school be useful. However, since this factor requires us to sports is essential. Busse adds that it is unlikely that the evaluate viewing on a community basis for cable and other stations assigned either to the Omaha or to the Sioux noncable homes, and significantly viewed surveys City ADI have provided the quality or the depth of cov typically measure viewing only in noncable house erage to the listed communities that it has through the holds, such surveys may need to be supplemented years, simply because they are located so far from these with additional data concerning viewing in cable areas, in some cases as much as 75 miles." Since KOLN is homes.8 the only commercial station licensed to Lincoln, it is able to provide daily coverage of the Nebraska state government, 6. In adopting rules to implement this provision, the thus promoting the diversity of views which was recognized Commission indicated that changes requested should be in Section 2(a)(6) of the 1992 Cable Act as having "sub considered on a community-by-community basis rather stantial governmental and First Amendment interest". than on a county-by- county basis and that they should be Busse notes that the Commission recognized KOLN as treated as specific to particular stations rather than ap significantly viewed in each of the five counties at issue plicable in common to all stations in the market.9 The when it initially released its list of such signals in 1972.© 2 rules further provide, in accordance with the requirements and Busse submits county-wide 1992 Arbitron data to dem of the Act, that a station not be deleted from carriage onstrate that it continues to enjoy wide-spread support, u during the pendency of an ADI change request. 10 noting that in each of the five contested counties, "KOLN has the largest market share and the largest share of news viewing by a wide margin."

7 H.R. Rep. 102-628, 102d Cong., 2d Sess. 97-98 (1992). Section 76.5(i), According to Arbitron©s 1993 report Television 8 MM Docket 92-259, 8 FCC Red at 2977. County Coverage: Nebraska. KOLN currently has a 50 share and 9 MM Docket 92-259, 8 FCC Red at 2977, n.6139. a 90 net weekly circulation off-air in Platte County, and a 43 10 47 C.F.R. §76.59. share and a 86 net weekly circulation off-air in Seward County; 11 To support its claim, Busse submits several lists of news Arbitron did not report any off-air viewing for the other three items on which it reported between April 1992 and April 1993 counties. concerning events in the five counties where the. listed commu 13 Recognizing that the Commission previously requested com nities are located. For Antelope County, it broadcast 16 hems; it munity-specific data, rather than cou.nty-wide data. Busse broadcast 24 items about events in Butler County; for Johnson explains that, in this instance, county-wide data should be sta County, it aired 11 items; Busse broadcast 54 items about events tistically reliable, because it ". . . is seeking to add all of the in Platte County; and it aired 32 items concerning events in communities in each county. . . ." At the same time, Busse Seward County. notes that even though the county-wide data could be broken 12 For a network station to be deemed significantly viewed in a down by zip code (thus approximating community data), the community or in a county, it must achieve in noncable homes a resulting number of diaries would be so small that any data share of viewing hours of at least 3 percent (total week hours) based on it would not be statistically reliable. and a net weekly circulation of a least 25 percent. 47 C.F.R.

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IV. ANALYSIS AND DECISION mandatory carriage rules. KOLN and KGIN carry 9. As described more fully below, KOLN has shown that duplicative programming. See Section 76.56(b)(5) of the the communities at issue are part of its economic Commission©s Rules. marketplace. With regard to long term carriage. KOLN has shown that cable systems serving 23 of the 30 communities at issue have carried KOLN or its satellite station KGIN V. ORDER since 1992. With regard to the remaining three commu 11. Accordingly, IT IS ORDERED, pursuant to Section nities. KOLN notes that all are currently carrying it. While 6l4(h)(l)(C) of the Communications Act of 1934, as we recognize that KOLN has not shown a history of car amended, (47 U.S.C. 534(h)(l)(Q), That the petition for riage in these three communities, we believe nevertheless special relief (CSR-3950-A), filed July 7, 1993, by Busse that the other factors taken as a whole warrant the relief Broadcasting Corporation IS GRANTED. requested. In addition, no party has filed an objection to 12. This action is taken pursuant to authority delegated KOLN©s requested modification of the Lincoln-Hastings- by Section 0.321 of the Commission©s Rules. Kearney ADI as it relates either to KOLN or to KGIN, even though the communities listed in the five counties in FEDERAL COMMUNICATIONS COMMISSION question are at least partially located within the Grade B contour of eight other commercial television broadcast sta tions.©4 Busse has also demonstrated how its programming serves the needs and interests of many of these commu nities. In addition, each of the communities listed in four of the five counties is located close to KOLN©s city of William H. Johnson license and within either its Grade A or Grade B contour, Deputy Chief, Cable Services Bureau and Busse operates a television broadcast translator station serving Antelope, the remaining county. 15 Although WNEM-TV has not fully addressed the third statutory fac tor ~ whether other stations entitled to carriage provide news and other programming of concern or interest to the communities in question - we do not believe that Congress intended this criterion to operate as a bar to a station©s ADI claim whenever other stations could also be shown to serve the communities at issue, but rather that this cri terion was intended to enhance a station©s claim where it could be shown that other stations do not serve the com munities at issue. 10. Finally with respect to the viewership issue, the most recent data reported by Arbitron for 1993 in its study Television County Coverage: Nebraska (Standard/Fringe) confirms that KOLN has by far the largest market share in each of the five counties,1 " in addition to the largest share of news viewing, both early and late. 17 This data does not separate viewing attributable to KOLN from that attrib utable to KGIN, since the latter station is a 100% satellite of the former station, and both stations broadcast essen tially the same programming. 18 Therefore, although we will add the communities requested in Butler, Johnson, Platte. Seward, and Antelope Counties to the ADI for each sta tion, we note that for purposes of mandatory signal car riage, cable operators will be required to carry only one of the two stations because as defined by the Commission©s

14 The eight other Nebraska television stations are as follow: 17 We recognize that this data is county-wide rather than KCAN (ABC, Ch. 8), Albion; KHAS-TV (NEC, Ch. 5), Hastings: community-specific. However, we have previously stated that KHGI-TV (ABC, Ch. 13), Kearney; KSNB-TV (ABC, Ch. 4), we will accept such data as probative, although not conclusive, Superior: and from Omaha. KETV (ABC, Ch. 7); KMTV (CBS, in cases of this type, absent evidence that such data are not Ch. 3); KPTM (Ind., Ch. -42); and WOWT (NBC. Ch. 6). fairly reflective of viewing in the actual communities in ques 15 Because we believe that ADI©s should reflect the existing tion. See, RKZ Television, Inc., 8 FCC Red 8008, 8010 (19P3). economic marketplace in as accurate and as complete a way as IS On p. ii of the Introduction to its report, Arbitron provides possible, we will add the communities requested in Antelope the following explanation: "S-l Satellites are satellite stations County both to KOLN©s and to KGIN©s ADI. which, subject to the circumstances noted below, simultaneous 16 In Antelope, KOLN©s total share of county viewing is 36%; ly rebroadcast 100 percent of the parent station©s programming. in Butler, it©s 39%; in Johnson, it©s 35%; in Platte. it©s 32%; and For purposes of this policy, the S-l Satellite must rebroadcast in Seward, it©s 35%. By comparison, the station with the closest programming (exclusive of commercials) of the parent station total share of county viewing in Antelope is KCAN with 15%; in its entirety. * * * * Viewing hour estimates are always in Butler, it©s KETV with 12%; in Johnson, it©s KETV with reported in combination with the parent station. A© + © next to 17%; in Platte, it©s KETV with 10%; and in Seward it©s KETV the parent©s call letters indicates the combined viewing hour with 15%. estimates of the parent and the S-l Satellite."

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