DA 95-1755 Federal Communications Commission Record 10 FCC Red No. 17

clusive of others, based on measured viewing patterns. Before the Essentially, each county in the United States is allocated to Federal Communications Commission a market based on which home-market stations receive a Washington, D.C. 20554 preponderance of total viewing hours in the county. For purposes of this calculation, both over-the-air and cable television viewing are included.3 In re: 3. Under the Act, however, the Commission is also di rected to consider changes in ADI areas. Section 4 provides Multimedia WMAZ, Inc. CSR-4182-A that the Commission may: Macon, Georgia with respect to a particular television broadcast sta For Modification of Station tion, include additional communities within its tele WMAZ-TV©s ADI vision market or exclude communities from such station©s television market to better effectuate the purposes of this section. MEMORANDUM OPINION AND ORDER In considering such requests, the Act provides that: Adopted: August 3,1995; Released: August 17,1995 the Commission shall afford particular attention to By the Deputy Chief, Cable Services Bureau: the value of localism by taking into account such factors as - (I) whether the station, or other stations located in INTRODUCTION the same area, have been historically carried on the 1. In the captioned proceeding, Multimedia WMAZ, Inc., cable system or systems within such community; licensee of station WMAZ-TV (CBS, Channel 13), Macon, Georgia (hereinafter "WMAZ-TV") has requested the Com (II) whether the television station provides coverage mission to include the communities of Marshallville, Mon- or other local service to such community; tezuma, Oglethorpe, and all unincorporated areas of (III) whether any other television station that is eli Macon County, Georgia within the Macon, Georgia "area gible to be carried by a cable system in such commu of dominant influence" ("ADI") for the purpose of©obtain nity in fulfillment of the requirements of this section ing signal carriage rights on the cable systems serving those provides news coverage of issues of concern to such communities. AFLAC Broadcast Partners, licensee of sta community or provides carriage or coverage of sport tion WTVM (ABC, Channel 9), Columbus, Georgia ing and other events of interest to the community; ("WTVM"), and Avant Development Corporation, licensee and of station WRBL (CBS, Channel 3), Columbus, Georgia (IV) evidence of viewing patterns in cable and ("WRBL"), filed oppositions to the petition, to which noncable households within the areas served by the WMAZ-TV filed informal comments.1 cable system or systems in such community.6 i BACKGROUND 4. The legislative history of this provision indicates that: 2. Pursuant to §4 of the Cable Television Consumer Protection and Competition Act of 1992 ("1992 Cable where the presumption in favor of ADI carriage Act")2 and implementing rules adopted by the Commission would result in cable subscribers losing access to in its Report and Order in MM Docket 92-259? commercial local stations because they are outside the ADI in television broadcast stations are entitled to assert mandatory which a local cable system operates, the FCC may carriage rights on cable systems located within the station©s make an adjustment to include or exclude particular market. A station©s market for this purpose is its "area of communities from a television station©s market con dominant influence" or ADI as defined by the Arbitron sistent with Congress© objective to ensure that televi audience research organization.4 An ADI is a geographic sion stations be carried in the areas which they serve market designation that defines each television market ex and which form their economic market.

1 WMAZ-TV notes that it inadvertently failed to timely re poses of the broadcast multiple ownership rules. Section spond to the oppositions within the applicable period. The 76.55(e) of the Commission©s Rules provides that the ADIs to be station states that should the Commission not accept WMAZ©s used for purposes of the initial implementation of the man reply in the formal pleading cycle, it should accept the reply as datory carriage rules are those published in Arbitron©s informal comments in response to WRBL and WTVM©s opposi 1991-1992 Television Market Guide. tions. Since the pleading was in fact late-filed, we shall consider 5 Because of the topography involved, certain counties are it as informal comments and not as a reply. divided into more than one sampling unit. Also, in certain 2 Pub. L. No. 102-385, 106 Stat. 1460 (1992). circumstances, a station may have its home county assigned to 3 8 FCC Red 2965, 2976-2977 (1993). an ADI even though it receives less than a preponderance of the 4 Section 614(h)(l)(C) of the 1992 Cable Act specifies that a audience in that county. For a more complete description of broadcasting station©s market shall be determined in the man how counties are allocated, see Arbitron©s Description of Meth ner provided in §73.3555(d)(3)(i) of the Commission©s Rules, as odology. in effect on May 1, 1991. This section of the rules, now 6 Communications Act of 1934, as amended, §614(h)(l)(C)(ii), redesignated §73.3555(e)(3)(i), refers to Arbitron©s ADI for pur 47 U.S.C. §534(h)(l)(C)(ii).

8784 10 FCC Red No. 17 Federal Communications Commission Record DA 95-1755

***** station whose signal substantially duplicates the signal of any other local signal carried or the signals 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 a single affiliate of a signal carriage rights. These factors are not intended broadcast network, it is obliged to carry the affiliate from to be exclusive, but may be used to demonstrate that within the ADI whose city of license is closest to the a community is part of a particular station©s market.7 principal headend of the cable system.11 Accordingly, based on the specific circumstances involved, the addition of communities to a station©s ADI may guarantee it cable 5. The Commission provided guidance in its Report and carriage and specific channel position rights; simply pro Order in MM Docket 92-259, supra, to aid decision making vide the system operator with an expanded list of must- in these matters, as follows: carry signals from which to choose, i.e., when it has used up its channel capacity mandated for broadcast signals 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 OF THE PARTIES community (factor 2), parties may demonstrate that 8. In its petition, WMAZ-TV asks the Commission to add the station places at least a Grade B coverage contour Marshallville, Montezuma, Oglethorpe, and all over the cable community or is located close to the unincorporated areas of Macon County, Georgia to the community in terms of mileage. Coverage of news or Macon, Georgia ADI so that WMAZ-TV may assert must other programming of interest to the community carry rights on the cable systems serving those commu could be demonstrated by program logs or other nities. WMAZ-TV explains that it began operating in Sep descriptions of local program offerings. The final fac tember 1953 and is affiliated with the CBS network. tor concerns viewing patterns in the cable commu WMAZ-TV submits that because it has been carried for nity in cable and noncable homes. Audience data almost 25 years on the cable systems in the communities, clearly provide appropriate evidence about this fac deletion from the systems would cause significant disrup tor. In this regard, we note that surveys such as those tion to the viewing habits of cable subscribers in the com used to demonstrate significantly viewed status could munities. be useful. However, since this factor requires us to 9. In support of its request, WMAZ-TV states that it has evaluate viewing on a community basis for cable and been carried on the Scripps Howard cable system in Macon noncable homes, and significantly viewed surveys County since 1969. It also asserts that the other cable typically measure viewing only in noncable house systems in the communities have historically carried its holds, such surveys may need to be supplemented signal. With respect to coverage and local service, WMAZ- with additional data concerning viewing in cable TV states that more than one-half of Macon County is homes.8 within its Grade A contour and its Grade B contour wholly encompasses the cable communities. WMAZ-TV 6. In adopting rules to implement this provision, the also asserts that it has a commitment to local programming Commission indicated that changes requested should be and broadcasts some 42 1/2 hours of news, information, considered on a community-by-community basis rather and public affairs programming each week - over half of it than on a county-by-county basis and that they should be devoted to coverage of local news. The station includes a treated as specific to particular stations rather than ap news log reflecting the kind of local issues (sports, crimes, plicable in common to all stations in the market.9 The and accidents) it covers in Us newscasts. With regard to rules further provide, in accordance with the requirements other stations serving the area, WMAZ-TV states that Ma of the Act, that a station not be deleted from carriage con County also receives coverage from Television Broad during the pendency of an ADI change request.10 cast Stations WLTZ (NBC, Channel 38), WRBL, and 7. Adding communities to a station©s ADI generally en WTVM, all Columbus, Georgia; WALB (NBC, Channel titles that station to insist on cable carriage in those com 10), and WFXL (Ind., Channel 31) Albany, Georgia; munities. However, this right is subject to several WTGS (Ind., Channel 28), Hardeeville, South Carolina; conditions: 1) a cable system operator is generally required and WGXA (ABC, Channel 24) and WMGT (NBC, Chan to devote no more than one-third of its activated channel nel 41), both Macon, Georgia. As for local viewing pat capacity to compliance with the mandatory signal carriage terns, WMAZ-TV asserts that although Macon County is obligations, 2) the station is responsible for delivering a assigned to the Columbus, Georgia ADI, it is still consid good quality signal to the principal headend of the system, ered the local CBS affiliate by viewers in the communities 3) indemnification may be required for any increase in because of its long history of service. According to 1993 copyright liability resulting from carriage, and 4) the sys Nielsen figures, WMAZ-TV has a 36 cable share and a 32 tem operator is not required to carry the signal of any non-cable share in Macon County. WMAZ-TV adds that it

7 H.R. Rep. No, 628, 102d Cong., 2d Sess. 97 (1992). absent evidence that such data is not fairly reflective of viewing 8 8 FCC Red at 2977 (emphasis in original). in the actual communities in question, we accept such data as 9 8 FCC Red at 2977 n.139. Viewership data cited herein is probative in cases of this type. from Arbitron, Television County Coverage reports. This data is 10 47 C.F.R. §76.59. county data, rather than community-specific data. However, 11 8 FCC Red at 2981.

8785 DA 95-1755 Federal Communications Commission Record 10 FCC Red No. 17

"outperforms" all Columbus stations combined. Finally, station from being deleted in the relevant cable commu the station submits that residents and community leaders nities and eliminate potential disruptions to cable viewers, have expressed their strong desire to be served as part of most of whom prefer WMAZ-TV over other stations. the Macon ADI to ensure continued carriage of WMAZ-TV on the cable systems serving the communities. 10. In its opposition, WRBL submits that the petition ANALYSIS AND DECISION should be denied because WMAZ-TV has failed to make 13. WMAZ-TV has provided sufficient evidence to justify the requisite showing under the 1992 Cable Act and the its market modification request and it will accordingly be Commission©s implementing rules. WRBL first argues that granted. Turning to the factors specified in the 1992 Cable WMAZ-TV fails to demonstrate that it has been historically Act, we find that WMAZ-TV has met three of the four carried, in terms of years, on Ideal Cable TV and Peach statutory elements with the historical carriage requirement State Cable, the two other systems serving the commu and viewership showing being particularly ©notable. As nities. Moreover, the petition fails to indicate whether oth WMAZ-TV©s pleading reveals, the station has been continu er Macon ADI stations have been carried by the cable ously carried on the Scripps Howard and Peach State cable operators serving Macon County. As for WMAZ-TV©s local systems for nearly 25 years, and on the Ideal Cable TV service, WRBL argues that the programming demonstra system for nearly 10 years. The fact that the cable operators tions are unsubstantiated and do not specifically indicate have continuously carried WMAZ-TV demonstrates that how they are tied to the communities to be added to the they and their subscribers value the station as the predomi Macon ADI. With regard to other stations in the market nant CBS network affiliate providing service to the com providing relevant programming, WRBL asserts that it airs munity at issue and that the areas in question are logically coverage of special news events, weather reports, and local part of its market. sports results. On a different note, WRBL questions why 14. The viewing pattern data in cable and non-cable special relief is necessary here because there is no market households also demonstrates that WMAZ-TV has a strong anomaly that needs to be corrected as WMAZ-TV©s is marketplace presence in the cable communities. The sta evidently successful in the Columbus, Georgia television tion has a substantial net weekly circulation and share in marketplace. WRBL hypothecates that the petition has the cable and non-cable households in Macon County. In 1993, broader purpose of re-assigning the entire County of Ma for example, WMAZ-TV©s viewing share in Macon County con into the Macon ADI. If this is the case, WRBL notes was 27 and its net weekly circulation was 60, which is that there is no support for such a modification. significantly greater than the viewership garnered by 11. WTVM, in its opposition, also argues that WMAZ-TV WRBL, the Columbus CBS affiliate.13 With respect to cov has failed to carry its burden under the Commission©s rules erage and local service to the cable communities, we be and its petition should be denied. 12 According to WTVM, lieve that WMAZ-TV has shown that it provides sufficient WMAZ-TV fails to provide any history with respect to its local news coverage and other community-specific human carriage on two of the three cable systems serving the interest stories. Moreover, the station©s Grade B contour communities. WTVM also submits that it has provided covers all the relevant cable communities.14 local service to the communities for over 30 years and has 15. With respect to the third factor, we note that WTVM been historically carried on all of the relevant cable sys and WRBL indicate that they provides coverage of, and tems in the County. In addition, WTVM produces and airs programming to, the communities and county in question. extensive local news, weather, and sports programming. However, we do not believe that Congress intended the WTVM also asserts that it has significant viewership levels third criterion to operate as a bar to a station©s ADI claim in both cable and non-cable homes in Macon .County. whenever other stations could also be shown to serve the WTVM similarly questions whether WMAZ-TV petition is communities at issue. Rather, we believe that this criterion justified since WMAZ-TV is now carried on the Macon was intended to enhance a station©s claim where it could be County cable systems. WTVM notes that if WMAZ-TV is shown that other stations do not serve the communities at indeed asking for the Macon County communities to be issue. Under such circumstances, a denial of carriage rights deleted from the Columbus ADI, such a proposal must be to the claiming station could deprive cable viewers of any denied because the evidence does not support such a result. broadcast signals that might provide programming geared 12. In its informal comments, WMAZ-TV first clarifies to their communities. We view WMAZ-TV©s showing on that Peach State Cable has carried its signal since 1968 and each of the other factors is sufficient, and even absent Ideal Cable TV©has carried its signal since 1984. With enhancement under the third criterion, grant of its request regard to local service, WMAZ-TV argues that it does is warranted. specifically serve the communities through its half-hour local affairs program, "Close-Up", as well as through its editorials, numerous news stories, and high school sports ORDER coverage. WMAZ-TV also argues that its petition is neces 16. Accordingly, IT IS ORDERED, pursuant to §614 of sary because carriage on the Macon County cable systems the Communications Act of 1934, as amended (47 U.S.C. is not mandatory under the 1992 Cable Act and the Com §534), and §76.59 of the Commission©s Rules (47 C.F.R. mission©s rules; an ADI redesignation would prevent the §76.59), that the petition for special relief filed on January 5, 1994 by Multimedia WMAZ-TV, Inc. IS GRANTED.

notes that it incorporates by reference the argu are not fairly reflective of viewing in the actual communities in ments raised by WRBL in its opposition. question, such data are acceptable as probative, although not 13 Arbitron, Television County Coverage: Georgia (Stan conclusive, in cases of this type. dard/Fringe), 1993. These data are county-based, rather than 14 The Commission has held that Grade B coverage dem community-specific. However, absent evidence that such data onstrates service. See 8 FCC Red at 2981.

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Multimedia WMAZ-TV, Inc. shall notify Scripps Howard, Peach State Cable, and Ideal Cable TV 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. Scripps Howard, Peach State Cable, and Ideal Cable TV shall come into compliance with the applicable rules with in 60 days of such notification. 17. 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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