DA 95-541 Federal Communications Commission Record 10 FCC Red No. 7

Arbitron audience research organization.5 An ADI is a Before the geographic market designation that defines each television Federal Communications Commission market exclusive of others, based on measured viewing Washington, D.C. 20554 patterns. Essentially, each county in the United States is allocated to a market based on which home-market stations In re: receive a preponderance of total viewing hours in the county. For purposes of this calculation, both over-the-air Cook Inlet Communications, Inc. CSR-3827-A and viewing are included.6 New Haven, Connecticut 3. Under the Act, however, the Commission is also di rected to consider changes in ADI areas. Section 614(h) of the 1992 Cable Act provides that the Commission may: For Modification of the Hartford-New Haven, Connecticut ADI with respect to a particular television broadcast sta tion, include additional communities within its tele MEMORANDUM OPINION AND ORDER vision market or exclude communities from such station's television market to better effectuate the Adopted: March 17, 1995; Released: March 24, 1995 purposes of this section.

By the Cable Services Bureau: In considering such requests, the Act provides that:

the Commission shall afford particular attention to INTRODUCTION the value of localism by taking into account such 1. Cook Inlet Communications Corp., licensee of Station factors as— WTNH-TV (ABC, Channel 8), New Haven, Connecticut, (I) whether the station, or other stations located in has filed a petition for special relief seeking to include the the same area, have been historically carried on the communities located in Fairfield County, Connecticut, in cable system or systems within such community; the Hartford-New Haven ADI for purposes of the Commis sion's mandatory signal carriage rules. 1 This request is (II) whether the provides coverage unopposed.2 or other local service to such community; (III) whether any other television station that is eli gible to be carried by a cable system in such commu BACKGROUND nity in fulfillment of the requirements of this section 2. Pursuant to §4 of the Cable Television Consumer provides news coverage of issues of concern to such Protection and Competition Act of 1992 ["1992 Cable community or provides carriage or coverage of sport Act")3 and implementing rules adopted by the Commission ing and other events of interest to the community; in its Report and Order in MM Docket 92-259* a commer and cial television broadcast station is entitled to assert man (IV) evidence of viewing patterns in cable and datory carriage rights on cable systems located within the noncable households within the areas served by the station's market. A station's market for this purpose is its cable system or systems in such community.7 "area of dominant influence," or ADI, as defined by the

1 Cook explains that there are thirty-five communities in yond those stations' distinct local markets; and, in most cases, Fairfield County, which are served by five cable systems. The cannot be obtained or viewed'off-air with a conventional home Bridgeport system serves the Fairfield County communities of antenna." See Comments of Cablevision of Connecticut, L.P. Bridgeport, Fairfield. Southport, and Stratford. The Norwalk and Cablevision Systems of Southern Connecticut, L.P. at 3 system serves the Fairfield County communities of Cos Cob, (filed July 1, 1993). Darien, Easton, East Norwalk, Georgetown. Greenwich, New * Pub. L. No. 102-385, 106 Stat. 1460 (1992). Canaan, Norwalk, Old Greenwich, Redding, Redding Ridge, 4 8 FCC Red 2965, 2976-2977 (1993). Riverside, Rowayton, South Norwalk, Stamford, Weston, West- 5 Section 4 of the 1992 Cable Act specifies that a commercial port, West Redding, and Wilton. The Danbury system-serves the broadcasting station's market shall be determined in the man Fairfield County communities of Bethel, Danbury, and ner provided in § 73.3555(d)(3)(i) of the Commission's Rules, as Ridgefield. The Seymour system services the Fairfield County in effect on May 1, 1991. This section of the rules, now communities of Huntington and Shelton. Crown Cable's princi redesignated § 73.3555(e)(3)(i), refers to Arbitron's ADI for pur pal headend currently is being relocated from New Milford to poses of the broadcast multiple ownership rules. Section Newtown. The Newtown system services the Fairfield County 76.55(e) of the Commission's Rules provides that the ADIs to be communities of Brookfield, Monroe, New Fairfield, Newtown, used for purposes of the initial implementation of the man Sandy Hook, Sherman and Trumbull. datory carriage rules are those published in Arbitron's 2 On July 1, 1993, Cablevision of Connecticut. L.P. and 1991-1992 Television Market Guide. Cablevision Systems of Southern Connecticut, L.P. 6 Because of the topography involved, certain counties are ("Cablevision") filed comments in this proceeding. Cablevision divided into more than one sampling unit. Also, in certain maintains that Cook's petition, which Cablevision does not op circumstances, a station may have its home county assigned to a pose, "reinforces Cablevision System Corporation's own Petition separate ADI of its own, even though stations from another for Special Relief which, inter alia, seeks to exclude from must market receive a preponderance of the audience in that county. carry status on its Connecticut systems four stations that are For a more complete description of how counties are allocated, geographically removed from the Fairfield County communities see Arbitron's Description of Methodology. served by Cablevision; offer no programming with appeal be 7 47 U.S.C. §534(h)(l)(C)(ii).

3278 10 FCC Red No. 7 Federal Communications Commission Record DA 95-541

4. The legislative history of this provision indicates that: than on a county-by-county basis, and that they should be treated as specific to particular stations rather than ap where the presumption in favor of ADI carriage plicable in common to all stations in the market. 10 The would result in cable subscribers losing access to rules further provide, in accordance with the requirements local stations because they are outside the ADI in of the 1992 Cable Act, that a station not be deleted from which a local cable system operates, the FCC may carriage during the pendency of an ADI change request." make an adjustment to include or exclude particular 7. Adding communities to a station's ADI generally en communities from a television station's market con titles that station to insist on cable carriage in those com sistent with Congress' objective to ensure that televi munities. However, this right is subject to several sion stations be carried in the areas which they serve conditions: 1) a cable system operator is generally required and which form their economic market. to devote no more than one-third of the system's activated channel 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; 3) indemnification may be required for any [This subsection] establishes certain criteria which the increase in copyright liability resulting from carriage; and Commission shall consider in acting on requests to 4) the system operator is not required to carry the signal of modify the geographic area in which stations have any station whose signal substantially duplicates the signal signal carriage rights. These factors are not intended of any other local signal carried, or the signal of more than to be exclusive, but may be used to demonstrate that one local station affiliated with a particular broadcast net a community is part of a particular station's market.8 work. If, pursuant to these requirements, a system operator elects to carry the signal of only one such duplicating 5. The Commission provided guidance in MM Docket signal, the operator is obliged to carfy the station from the 92-259, supra, to aid decision making in these matters, as ADI whose is closest to the principal follows: headend of the cable system. 12 Accordingly, based on the specific circumstances involved, the addition of commu nities to a station's ADI may guarantee it cable carriage For example, the historical carriage of the station and specific channel position rights, or may simply provide could be illustrated by the submission of documents the system operator with an expanded list of must-carry listing the cable system's channel line-up (e.g., rate signals from which to choose (i.e., when the system has cards) for a period of years. To show that the station used up its channel capacity mandated for broadcast signal provides coverage or other local service to the cable carriage, or determined which of duplicating network affili community (factor 2), parties may demonstrate that ated stations are entitled to carriage priority). the station places at least a Grade B coverage contour over the cable community or is located close to the community in terms of mileage. Coverage of news or MODIFICATION ARGUMENTS other programming of interest to the community could be demonstrated by program logs or other 8. The communities in Fairfield County, Connecticut are descriptions of local program offerings. The final fac considered to be part of the New York, New York area of tor concerns viewing patterns in the cable commu dominant influence ("ADI"). WTNH-TV's Hartford-New nity in cable and noncable homes. Audience data Haven, Connecticut ADI includes every Connecticut coun clearly provide appropriate evidence about this fac ty except for Fairfield, the reference point of the station's tor. In this regard, we note that surveys such as those city of license is only 9.74 miles and its transmitter only used to demonstrate significantly viewed status could 14.26 miles from the Fairfield County border, and virtually be useful. However, since this factor requires us to all of Fairfield County is located within WTNH-TV's Grade evaluate viewing on a community basis for cable and A contour. noncable homes, and significantly viewed surveys 9. In support of its petition, WTNH-TV states that it has typically measure viewing only in noncable house been carried on all of the Fairfield County cable systems holds, such surveys may need to be supplemented since those systems began operation. 13 It contends that it with additional data concerning viewing in cable places a strong signal over all of Fairfield County, covering homes.9 most of the county with city grade service and the remain ing portion with a Grade A signal. Further, WTNH-TV 6. In adopting rules to implement this provision, the notes that its local newscasts routinely cover stories and Commission indicated that changes requested should be sports events relative to Fairfield County. 14 The station also considered on a community-by-community basis rather provides coverage of Connecticut events not provided by the stations which already have must-carry

8 H.R. Rep. 102-628, 102d Cong., 2d Sess. 97 (1992). Report and Order at f 41. By including all the communities in 9 Id. at 2977 (emphasis in original). the county, WTNH-TV seeks to ensure that neither of these two 10 MM Docket 92-259, 8 FCC Red at 2977, 2977 n.139. systems would, in the future, threaten its access to its viewers 11 47 C.F.R. § 76.59. through technical reconfigurations. 12 MM Docket 92-259, 8 FCC Red at 2981. u wTNH-TV states that it carried nearly forty stories originat 13 Bridgeport: since 1977; Norwalk: since 1982; Newtown: since ing in Fairfield County communities in one recent six-week 1978; Danbury: since 1972; Seymour: since 1972. WTNH-TV period and that its programming includes investigative reports notes that it already has must-carry status with respect to the and news series, in addition to coverage of breaking news. In Bridgeport and Seymour systems because those systems also addition, WTNH-TV states that it broadcasts University of Con serve communities within the Hartford-New Haven ADI. See necticut men's basketball games and reports on the sports teams

3279 DA 95-541 Federal Communications Commission Record 10 FCC Red No. 7 status on Fairfield County systems and several of its news within thirty (30) days of the release date of this Memoran personnel are active in Fairfield County affairs. According dum Opinion and Order. The affected cable systems shall to WTNH-TV, Fairfield County viewers are dependent come into compliance with the applicable rules within 60 upon Connecticut stations such as WTNH-TV for' their days of such notification. coverage of state-wide matters of interest. With respect to 13. This action is taken pursuant to authority delegated viewing patterns, WTNH-TV claims that it is now and has by §0.321 of the Commission's Rules. been the second most-watched television station both in cable and noncable homes in Fairfield County during time FEDERAL COMMUNICATIONS COMMISSION periods when non-network programming is shown, its newscasts are the highest-rated Connecticut newscasts among all county viewers, cable and noncable, and its morning news program is the highest-rated program in its time period, consistently garnering over one-third of all households in the county. In support, WTNH-TV submits William H. Johnson 1991, 1992 and 1993 Nielsen Household Rating/Share data Deputy Chief, Cable Services Bureau for Fairfield County for the five time periods programmed by WTNH-TV with locally-produced or syndicated pro gramming. WTNH-TV notes that during the remaining time periods, which carry programming from the ABC Television Network, it also attracts a substantial number of Fairfield County viewers. 15

DISCUSSION 10. WTNH-TV's petition is consistent with the applicable standards and will be granted. The communities in ques tion are close geographically to WTNH-TV's community of license and transmitter, are well within its service area, and are logically part of its market area. WTNH-TV has shown Grade A coverage to all of the Fairfield communities. We have previously stated that this is sufficient to demonstrate coverage or other local service. 16 WTNH-TV has demon strated a long history of carriage on the cable systems serving the above communities. It has further provided information as to a lack of specific coverage of local events, sports or news in these communities by other stations presently eligible to assert mandatory carriage rights on cable systems serving these communities. And finally, the available evidence of cable and noncable household view ing patterns for Fairfield County indicates wide-spread viewership of WTNH-TV. 17

ORDER 11. In view of the foregoing, we find that grant of WTNH-TV's petition is in the public interest. 12. 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 captioned petition for special relief filed May 24, 1993, by Cook Inlet Communications Corp. IS GRANTED. This change shall be effective in accordance with the following schedule: Cook shall notify the cable systems in question in writing of its carriage and channel position elections, see 47 C.F.R. §§ 76.56, 76.57. 76.64(f),

of the University of Bridgeport, Fairfield University, Sacred note that, although the data is county-based, rather than com Heart University and many of the high school teams in Fair- munity-specific, absent evidence that such data is not fairly field County. WTNH-TV notes that, except for certain occa reflective of viewing in the actual communities in question, we sions, no Connecticut sports team has their games broadcast on shall accept such data as probative, though not conclusive. New York stations and reports on teams in Fairfield County are 16 MM Docket 92-259, 8 FCC Red at 2977. See also paragraph "virtually nonexistent on New York stations." 5, supra. 15 We note that data from Arbitron's 1992 County Coverage 17 This determination is subject to all generally applicable limi Survey, Standard/Fringe Volume, which shows a 9% total coun tations on signal carriage rights, including copyright liability, ty share, and a 50% total net weekly circulation, in cable and channel capacity, and program duplication. See paragraph 7, noncable households, confirms WTNH-TV's contention. We also supra.

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