Federal Communications Commission Record DA 96-360
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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 sta- tion, 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 ex- clusive 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). 3579 DA 96-360 Federal Communications Commission Record 11 FCC Red No.7 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, [This subsection] establishes certain criteria which the 3) indemnification may be required for any increase in Commission shall consider in acting on requests to copyright liability resulting from carriage, and 4) the sys- modify the geographic area in which stations have tem operator is not required to carry the signal of any signal carriage rights. These factors are not intended whose signal substantially duplicates the signal of to be exclusive, but may be used to demonstrate that station any other local signal carried or the signals of more than a community is part of a particular station's market.5 one local station affiliated with a particular broadcast net- work. If, pursuant to these requirements, a system operator 5. The Commission provided guidance in its Report and elects to carry the signal of only a single affiliate of a Order in MM Docket 92-259, supra, to aid decision mak- broadcast network, it is obliged to carry the affiliate from ing in these matters, as follows: 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 fac- 8. The communities here in question are all in Palm tor concerns viewing patterns in the cable commu- Beach County, Florida, which is located within the West nity in cable and noncable homes. Audience data Palm Beach-Fort Pierce-Vero Beach, Florida ADI. Palm clearly provide appropriate evidence about this fac- Beach County is adjacent to the Miami ADI, just to its tor. In this regard, we note that surveys such as those north. The communities in question are located across used to demonstrate significantly viewed status could Palm Beach County, and range from approximately 41 to be useful. However, since this factor requires us to 81 miles from Miami. evaluate viewing on a community basis for cable and 9. In support of its petition, WBFS-TV argues that it is noncable homes, and significantly viewed surveys currently carried on cable systems serving the communities typically measure viewing only in noncable house- in question, and that it has been carried on most of these holds, such surveys may need to be supplemented systems for at least five years, since WBFS-TV began broad- with additional data concerning viewing in cable casting Miami Heat basketball games. WBFS-TV states that homes.6 it "is the only full power station currently carrying the Miami Heat professional basketball team in Palm Beach 6. In adopting rules to implement this provision, the County," and that the station also broadcasts 52 Florida Commission indicated that changes requested should be Marlins baseball games, all of which sports broadcasts are considered on a community-by-community basis rather of great interest to residents of the communities in ques- than on a county-by-county basis and that they should be tion. Many area cable subscribers would lose access to these treated as specific to particular stations rather than ap- games if WBFS-TV is not carried, the station claims, and plicable in common to all stations in the market.7 The others would have to subscribe to an additional tier to rules further provide, in accordance with the requirements access the games. WBFS-TV also states that it broadcasts a of the Act, that a station not be deleted from carriage public affairs program on Sunday nights that covers south- during the pendency of an market area change request.8 ern 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.