Federal Communications Commission Record DA 96-360

11 FCC Red No.7 Federal Communications Commission Record DA 96-360

Essentially, each county in the United States is allocated to Before the a market based on which home-market stations receive a Federal Communications Commission preponderance of total viewing hours in the county. For Washington, D.C. 20554 purposes of this calculation, both over-the-air and cable television viewing are included.3 3. Under the Act, however, the Commission is also di- In re: rected to consider changes in ADI areas. Section 614(h)(1)(C) provides that the Commission may: CHANNEL 33, INC. CSR-3884-A Miami, Florida with respect to a particular television broadcast station, include additional communities within its tele- For Modification of vision market or exclude communities from such Station WBFS-TV's ADI 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: March 13, 1996; Released: March 22, 1996 the Commission shall afford particular attention to the value of localism by taking into account such By the Cable Services Bureau: factors as -- (I) whether the station, or other stations located in the same area, have been historically carried on the INTRODUCTION cable system or systems within such community; 1. Channel 33, Inc. ["WBFS-TV"J, licensee of Station WBFS-TV (md., Channel 33). Miami, Florida, has filed the (II) whether the television station provides coverage captioned petition for special relief seeking to include the or other local service to such community; communities of Atlantis, Belle Glade, Boca Raton, (III) whether any other television station that Boynton Beach, Delray Beach, Highland Beach, Jupiter, iseligible to be carried by a cable system in such Pahokee, Palm Springs, Village of Golf, Wellington, and community in fulfillment of the requirements of this West Palm Beach, Florida. within the Miami, Florida "area section provides news coverage of issues of concern of dominant influence" for purposes of the cable television to such community or provides carriage or coverage mandatory broadcast signal carriage rules. WBFS-TV's peti- of sporting and other events of interest to the com- tion is opposed by Malrite Communications Group, Inc. munity; and ["WFLX"l, licensee of Television Broadcast Station WFLX (IV) evidence of viewing patterns in cable and (Ind., Channel 29), West Palm Beach, Florida; Photo Elec- noncable households within the areas served by the tronics, Inc. ["WPEC"l, licensee of Television Broadcast cable system or systems in such community.4 Station WPEC (ABC, Channel 12), West Palm Beach, Flor- ida; Krypton Broadcasting of Fort Pierce, Inc. ["WTVX"l, licensee of Station WTVX (CBS, Channel 34), Fort Pierce, 4. The legislative history of this provision indicates that: Florida; and WB Cable Associates, Ltd., dba West Boca Cablevision ["West Boca"J, operator of a cable television where the presumption in favor of ADI carriage system serving Boca Raton and unincorporated portions of would result in cable subscribers losing access to Palm Beach County, Florida. WBFS-TV has replied. local stations because they are outside the ADI in which a local cable system operates, the FCC may make an adjustment to include or exclude particular BACKGROUND communities from a television station's market con- 2. Pursuant to §614 of the Communications Act and sistent with Congress' objective to ensure that televi- implementing rules adopted by the Commission in its Re- sion stations be carried in the areas which they serve port and Order in MM Docket 92259,l commercial televi- and which form their economic market. sion broadcast stations are entitled to assert mandatory carriage rights on cable systems located within the station's market. A station's market for this purpose is its "area of dominant influence" or ADI as defined by the Arbitron audience research organization.2 An ADI is a geographic market designation that defines each television market exclusive of others, based on measured viewing patterns.

8 FCC Rcd 2965, 2976-2977 (1993). circumstances, a station may have its home county assigned to 2 Section 76.55(e) of the Commission's Rules provides that the an ADI even though it receives less than a preponderance of the ADIs to be used for purposes of the initial implementation of audience in that county. For a more complete description of the mandatory carriage rules are those published in Arbitron's how counties are allocated, see Arbitron's Description of Meth- 1991-1992 Television Market Guide. odology. Because of the topography involved, certain counties are Communications Act of 1934, as amended, §6l4(h)(1)(C)(ii), divided into more than one sampling unit. Also, in certain 47 U.S.C. §534(h)(l)(C)(ii).

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capacity to compliance with the mandatory signal carriage obligations, 2) the station is responsible for delivering a [This subsection] establishes certain criteria which the good quality signal to the principal headend of the system, Commission shall consider in acting on requests to 3) indemnification may be required for any increase in modify the geographic area in which stations have copyright liability resulting from carriage, and 4) the sys- signal carriage rights. These factors are not intended tem operator is not required to carry the signal of any to be exclusive, but may be used to demonstrate that station whose signal substantially duplicates the signal of a community is part of a particular station's market.5 any other local signal carried or the signals of more than one local station affiliated with a particular broadcast net- 5. The Commission provided guidance in its Report and work. If, pursuant to these requirements, a system operator Order in MM Docket 92-259, supra, to aid decision mak- elects to carry the signal of only a single affiliate of a ing in these matters, as follows: broadcast network, it is obliged to carry the affiliate from within the market whose city of license is closest to the principal headend of the cable system.9 Accordingly, based For example, the historical carriage of the station on the specific circumstances involved, the addition of could be illustrated by the submission of documents communities to a station's market area may guarantee it listing the cable system's channel line-up (e.g., rate cable carriage and specific channel position rights; simply cards) for a period of years. To show that the station provide the system operator with an expanded list of must- provides coverage or other local service to the cable carry signals from which to choose, i.e., when it has used community (factor 2), parties may demonstrate that up its channel capacity mandated for broadcast signals the station places at least a Grade B coverage contour carriage, or determined which of duplicating network affili- over the cable community or is located close to the ated stations are entitled to carriage priority. community in terms of mileage. Coverage of news or other programming of interest to the community could be demonstrated by program logs or other MARKET FACTS AND ARGUMENTS OF THE PARTIES descriptions of local program offerings. The final factor concerns viewing patterns in the cable commu- 8. The communities here in question are all in Palm nity in cable and noncable homes. Audience data Beach County, Florida, which is located within the West clearly provide appropriate evidence about this fac- Palm Beach-Fort Pierce-Vero Beach, Florida ADI. Palm tor. In this regard, we note that surveys such as those Beach County is adjacent to the Miami ADI, just to its used to demonstrate significantly viewed status could north. The communities in question are located across be useful. However, since this factor requires us to Palm Beach County, and range from approximately 41 to evaluate viewing on a community basis for cable and 81 miles from Miami. noncable homes, and significantly viewed surveys 9. In support of its petition, WBFS-TV argues that it is typically measure viewing only in noncable house- currently carried on cable systems serving the communities holds, such surveys may need to be supplemented in question, and that it has been carried on most of these with additional data concerning viewing in cable systems for at least five years, since WBFS-TV began broad- homes.6 casting Miami Heat basketball games. WBFS-TV states that it "is the only full power station currently carrying the 6. In adopting rules to implement this provision, the Miami Heat professional basketball team in Palm Beach Commission indicated that changes requested should be County," and that the station also broadcasts 52 Florida considered on a community-by-community basis rather Marlins baseball games, all of which sports broadcasts are than on a county-by-county basis and that they should be of great interest to residents of the communities in ques- treated as specific to particular stations rather than ap- tion. Many area cable subscribers would lose access to these plicable in common to all stations in the market.7 The games if WBFS-TV is not carried, the station claims, and rules further provide, in accordance with the requirements others would have to subscribe to an additional tier to of the Act, that a station not be deleted from carriage access the games. WBFS-TV also states that it broadcasts a during the pendency of an market area change request.8 public affairs program on Sunday nights that covers southern Florida events of interest to area residents, and notes 7. Adding communities to a station's market area gen- that its signal extends well into Palm Beach County.'° erally entitles that station to insist on cable carriage in WBFS-TV further states that it is significantly viewed in the those communities. However, this right is subject to several communities in question over-the-air,TM and is likely even conditions: 1) a cable system operator is generally required more heavily viewed in cable homes. to devote no more than one-third of its activated channel

H.R. Rep. No. 628, lO2d Cong.. 2d Sess. 97 (1992). 6 contour encompasses eight of the twelve communities in ques- 8 FCC Rcd at 2977 (emphasis in original). tion: Atlantis, Boca Raton, Boynton Beach, Delray Beach, High- 8 FCC Rcd at 2977 n.139. Viewership data cited herein is land Beach, Palm Springs, Village of Golf, and Wellington. county data, rather than community-specific data. However, For an independent station to be deemed to be significantly absent evidence that such data is not fairly reflective of viewing viewed in a community or a county, it must achieve in in the actual communities in question, we accept such data as noncable homes a share of viewing hours of at least 2 percent probative in cases of this type. (total week hours) and a net weekly circulation of at least 47 C.F.R. §76.59. 5 percent. 47 C.F.R. §76.5(i). WBFS-TV has been found by the 8 FCC Rcd at 2981. Commission to be significantly viewed in, '° WBFS-TV specifically notes that its predicted Grade B inter alia, Boca Ra- ton, Boynton Beach, and Delray Beach in Channel 33, Inc. (WBFS-TV), Cable Television Actions Report No. 3037, Mimeo

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10. In opposition to WBFS-TV's petition, WFLX con- market modification requests,13 this is not the sole factor to tends that the petition "is based on little more than specu- evaluate. West Boca argues that WBFS-TV's entire petition lation and surmise," and the only allegation in the petition is based upon the station's carriage of certain sporting supported by affidavit is WBFS-TV's five-year record of events, and that the station fails to demonstrate any news, carriage on area cable systems. WFLX argues that WBFS- public affairs, or other local programming of specific inter- TV has made no factual showing at all concerning service est to the communities in question. In contrast, notes West to the communities in question, and indeed concedes that Boca, such local programming is available on other stations its Grade B contour fails to encompass four of the twelve entitled to carriage in the communities in question, and communities. Additionally, WFLX states, WBFS-TV con- the sports programming cited by WBFS-TV is also available cedes that other stations entitled to mandatory carriage in on other cable channels in the communities. West Boca the communities in question provide news and other local argues that WBFS-TV provides no current data concerning programming directed toward the communities in question. its viewership in the communities in question, and that the Finally, WFLX notes that WBFS-TV does not provide any station does not demonstrate why its history of carriage evidence at all of viewing patterns in cable homes in the justifies the relief it requests. communities, but simply offers unsupported speculation. 14. In reply, WBFS-TV argues that it may justify its 11. WPEC argues in opposition that WBFS-TV's carriage petition however it wishes. In any event, claims WBFS-TV, outside of its market on West Palm Beach area cable its sports broadcasts--which now also include Florida Pan- systems is, as the station admits, due to its carriage of thers hockey games--are of interest to and do constitute "sports programming for teams that are local to the Miami local service to the communities in question. This pro- market," and that this does not make WBFS-TV a local gramming is unique to the communities in question, station in the West Palm Beach area. Moreover, notes WBFS-TV maintains, because W19AQ obtains its feed from WPEC, Miami Heat and Florida Martins games are avail- WBFS-TV, as does WPTV, and the Sunshine Network airs able through Station WPTV (NBC, Channel 5), West Palm games not available on WBFS-TV. That WBFS-TV is sig- Beach, Florida; Low Power Television Station W19AQ nificantly viewed in Palm Beach County is settled, the (Channel 19), Palm Beach, Florida; and the Sunshine Net- station contends, and since acquiring that status it has work. WPEC states that WBFS-TV fails to provide a Grade increased its cable carriage from merely one of the cable B signal to fully two-thirds of Palm Beach County, and that systems serving the communities in question in 1986 to the station fails to demonstrate that it carries any news or nine cable systems today. WBFS-TV notes that it already local programming serving the communities in question at has received a notification from Cablevision Industries, all. WPEC finally submits Arbitron data for Palm Beach operator of a cable system serving, inter alia, Belle Glade County homes (cable and noncable combined) that shows and Pahokee, of the system's intent to drop WBFS-TV, and that Arbitron measures northern and southern Palm Beach hence the station's requested relief is necessary. County separately today,'2 and notes that this data shows that WBFS-TV today just meets the criteria for being significantly viewed in Palm Beach County South (2 percent ANALYSIS AND DECISION share and 23 percent net weekly circulation), but fails to 15. We shall grant WBFS-TV's petition only in part. do so in Palm Beach County North (1 percent share and 9 WBFS-TV does demonstrate a history of carriage on the percent net weekly circulation). cable systems serving the communities in question. With 12. WTVX argues in opposition that as WBFS-TV pro- respect to the second statutory factor, however, WBFS-TV vides no local news coverage to the communities in ques- concedes that it covers only' eight of the communities with tion and as most (if not all) of the sports programming a Grade B or better contour,14 most of which are located in offered by the station is already available to cable subscrib- that area of the county designated by Arbitron as Palm ers in the communities, denial of WBFS-TV's petition will Beach County South. At the same time, the station has also cause no disruption to subscribers, and no public interest shown that it provides programming coverage of interest to would be served by granting the petition. Moreover, argues the communities in question. No opponent has suggested WT\TX, carriage of a particular sports franchise's games or provided any evidence that viewers in the communities should not be grounds to modify an station's ADI, nor did in question do not find WBFS-TV's sports programming of Congress intend to do so. WBFS-TV fails to provide any interest or pertinence to them. Rather, opponents contend local coverage of news and events of interest to the com- that such programming should not count as satisfying the munities in question, WTVX contends, whereas WTVX and statutory factor of "coverage or other local service to such other area stations do. Nor, WTVX asserts, does WBFS-TV communit[ies] . . . and that such programming is demonstrate that residents of the communities in question available from other stations carried in any event. We rely on the station's programming. disagree. Congress has indicated the relevance of sports 13. West Boca notes that white the 1992 Cable Act does programming to our analyses of petitions such as WBFS- cite "carriage or coverage of sporting . events of interest TV's)6 With respect to the third factor---whether other to the community" as a factor to consider in evaluating stations entitled to carriage provide local coverage---we do not believe that Congress intended the third criterion to

No. 5744 (released July 14, 1986), and in Palm Beach County as Raton, Boynton Beach, Delray Beach, Highland Beach, Pahokee, a whole inh) Channel 33, Inc. (WBFS-TV), Cable Television and Village of Golf are assigned by Arbitron to Palm Beach Actions Report No. 3062, Mimeo No. 937 (released December 4, South. 1986). 13 U.S.C. §534(h)( 1)(C)i)(lll). WPEC also submits a letter from Arbitron which reveals 14 WBFS-TV in fact places a Grade A contour over Boca that the communities of Atlantis, Belle Glade, Jupiter, Palm Raton, Delray Beach, and Highland Beach. Springs, Wellington, and West Palm Beach are assigned by ' 47 U.S.C. §534(h)( 1)(C)(ii)(II). Arbitron to Palm Beach North, while the communities of Boca IS See 47 U.S.C. §534(h)(l)(C)(ii)(lll).

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operate as a bar to a station's ADI claim whenever other 18. Accordingly, for purposes of determining mandatory stations could also be shown to serve the communities at signal carriage obligations, we shall consider the commu- issue. Rather, we believe that this criterion was intended to nities of Atlantis, enhance a station's claim where it could be shown that Boca Raton, Boynton Beach, Delray Beach, Highland Beach, Pahokee, Village of Golf, and other stations do not serve the communities at issue. Under Wellington, Florida, to be part of the Miami, Florida ADI such circumstances, a denial of carriage rights to the claim- with respect to WBFS-TV, as well as within the West Palm ing station could deprive cable viewers of any broadcast Beach-Fort Pierce-Vero Beach, Florida ADI. This deter- signals that might provide programming geared to their mination is subject to all generally applicable limitations communities. In this case, because other stations do appear on signal carriage rights, including copyright liability, sig- to serve the communities named by WBFS-TV, this en- nal quality, channel capacity, and program duplication. See hancement factor would not appear applicable. paragraph 7, supra. 16. With respect to the fourth statutory factor, we recog- nize that WBFS-TV's viewership levels are not inherently compelling in the abstract. Nevertheless, WBFS-TV garners ORDER equal or higher viewership than other independent stations 19. In view of the foregoing, we find that grant of licensed to communities in the Miami ADI in both cable WBFS-TV's petition is in the public interest to the extent and noncable homes, including Television Broadcast Sta- indicated at paragraph 18, supra. tion WDZL (md., Channel 39), Miami, Florida, also car- 20. ried by West Boca. In Palm Beach County South, Accordingly, IT IS ORDERED, pursuant to §614 of WBFS-TV achieves a share of 1 and a net weekly circula- the Communications Act of 1934, as amended (47 U.S.C. tion of 21 in cable homes, and a share of 2 and a net §534), and §76.59 of the Commission's Rules (47 C.F.R. weekly circulation of 28 in noncable homes. WDZL §76.59), That the captioned petition for special relief filed achieves a share of 1 and a net weekly circulation of 21 in June 1, 1993 by Channel 33, Inc. IS GRANTED to the cable homes, and a share of I and a net weekly circulation extent indicated at paragraph 18, supra, and in all other of 24 in noncable homes. West Boca has not demonstrated respects IS DENIED. This change shall be effective in why WBFS-TV should be treated differently from WDZL accordance with the following schedule: WBFS-TV shall and other Miami ADI stations carried on the system. In notify the cable systems in question in writing of its car- contrast, in Palm Beach County North, WBFS-TV achieves riage and channel position elections (76.56, 76.57, and rather less viewership, garnering a share of 1 and a net 76.64(f) of the Commission's Rules) within 30 days of the weekly circulation of 10 in cable homes, and a share of 1 release date of this Memorandum Opinion and Order. The and a net weekly circulation of 8 in noncable homes. affected cable systems shall come into compliance with the applicable rules within 60 days of the above notice. 17. In addition to our analysis of the four statutory factors, we note that WBFS-TV's petition seeks to include 21. This action is taken pursuant to authority delegated by §0.321 of the Commission's Rules. within the station's Miami ADI the city of West Palm Beach, Florida (as well as neighboring communities), a core community of the West Palm Beach-Fort Pierce-Vero FEDERAL COMMUNICATIONS COMMISSION Beach ADI. In granting the Commission authority to modify market areas "to better effectuate the purposes of Ithe statutej,"7 we do not believe that Congress in the 1992 Cable Act intended for us to alter the basic structure of ADI markets themselves. In particular, we do not believe William H. Johnson that the authority given to us by the 1992 Cable Act should Deputy Chief, Cable Services Bureau generally be used to modify one AD! to include within it a core community of another AD!. This is especially true where, as in the instant case, the core community and its neighboring communities are located beyond the predicted Grade B contour of the requesting station, and the station garners significantly less viewing in these communities than it does in communities located nearer to the station, within its predicted Grade B contour. Such a modification does not simply promote "Congress' objective to ensure that television stations be carried in the areas which they serve and form their economic market,"8 but in fact modi- fies the basic nature and competitive relationships within the neighboring market. This would not, we believe. "better effectuate the purposes of" the 1992 Cable Act. In view of the totality of the circumstances presented to us, there- fore, we find that WBFS-TV has sufficiently justified its petition only with respect to the communities of Atlantis, Boca Raton, Boynton Beach, Delray Beach, Highland Beach, Pahokee, Village of Golf, and Wellington, Florida.

47 U.S.C. §534(h)(l)(C)(i). 18 H.R. Rep. No. 628, 102d Cong.. 2d Sess. 97 (1992).

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