10 FCC Red No. 14 Federal Communications Commission Record DA 95-1375 BACKGROUND Before the 2. Pursuant to §4 of the Cable Television Consumer Federal Communications Commission Protection (and Competition Act of 1992 ["1992 Cable Washington, D.C. 20554 Act") 1 and implementing rules adopted by the Commission in its Report and Order in MM Docket No. 92-2S9,2 com mercial television broadcast stations are entitled to assert In re: mandatory carriage rights on cable systems located within the station©s market. A station©s market for this purpose is Meredith Corporation CSR-4008-A its "area of dominant influence" or ADI as defined by the Orlando, Florida Arbitron audience research organization.3 An ADI is a geographic market designation that defines each television market exclusive of others, based on measured viewing For Modification of Television Broadcast patterns. Essentially, each county in the United States is Station WOFL-TV©s ADI allocated to a market based on which home-market stations receive a preponderance of total viewing hours in the county. For purposes of this calculation, both over-the-air MEMORANDUM OPINION AND ORDER and cable television viewing are included.4 3. Under the Act, however, the Commission is also di Adopted: June 15,1995; Released: June 26,1995 rected to consider changes in ADI areas. Section 614(h) provides that the Commission may: By the Cable Services Bureau: with respect to a particular television broadcast sta INTRODUCTION tion, include additional communities within its tele vision market or exclude communities from such 1. In the captioned proceeding, Meredith Corporation station©s television market to better effectuate the ("Meredith"), licensee of Television Broadcast Station purposes of this section. WOFL (Fox, Channel 35), Orlando, Florida, has requested the Commission to include all of the communities in Polk County and Indian River County, Florida ("the Commu In considering such requests, the Act provides that: nities") within the Orlando-Daytona-Melbourne "area of dominant influence" ("ADI") for purposes of the cable the Commission shall afford particular attention to television broadcast mandatory signal carriage rules. TVT the value of localism by taking into account such License, Inc., licensee of Television Broadcast Station factors as - WTVT (CBS, Channel 13), Tampa, Florida, and Tampa (I) whether the station, or other stations located in Bay Television, licensee of Television Broadcast Station the same area, have been historically carried on the WFTS (Fox, Channel 28), Tampa, Florida filed oppositions cable system or systems within such community; to the petition with respect to the inclusion of the commu nities in Polk County. Four parties filed oppositions to the (II) whether the television station provides coverage petition with respect to the inclusion of the communities or other local service to such community; in Indian River County: TCI of Northern New Jersey, Inc., (III) whether any other television station that is eli d/b/a TCI Cablevision of the Treasure Coast ("TCI"); gible to be carried by a cable system in such commu Krypton Broadcasting of Fort Pierce, Inc., licensee of nity in fulfillment of the requirements of this section WTVX (CBS, Channel 34), Fort Pierce, Florida; Malrite provides news coverage of issues of concern to such Communications Group, Inc., licensee of WFLX (Fox, community or provides carriage or coverage of sport Channel 29), West Palm Beach, Florida; and Photo Elec ing and other events of interest to the community; tronics Corporation, licensee of WPEC (ABC, Channel 12), and West Palm Beach, Florida. WOFL filed a consolidated reply to these oppositions. (IV) evidence of viewing patterns in cable and noncable households within the areas served by the cable system or systems in such community.5 4. The legislative history of this provision indicates that: 1 Pub. L. No. 102-385, 106 Stat. 1460 (1992). 4 Because of the topography involved, certain counties are 2 8 FCC Red 2965, 2976-2977 (1993). divided into more than one sampling unit. Also, in certain 3 Section 6.14(h)(l)(C) of the 1992 Cable Act specifies that a circumstances, a station may have its home county assigned to broadcasting station©s market shall be determined in the man an ADI even though it receives less than a preponderance of the ner provided in §73.3555(d)(3)(i) of the Commission©s Rules, as audience in that county. For a more complete description of in effect on May 1, 1991. This section of the rules, now how counties are allocated, see Arbitron©s Description of Meth redesignated §73.3555(e)(3)(i), refers to Arbitron©s ADI for pur odology. poses of the broadcast multiple ownership rules. Section 5 Communications Act of 1934, as amended, §614 (h)(l)(C)(ii), 76.55(e) of the Commission"s Rules provides that the ADIs to be 47 U.S.C. §534(h)(l)(C)(ii). used for purposes of the initial implementation of the man datory carriage rules are those published in Arbitron©s 1991-1992 Television Market Guide. 7141 DA 95-1375 Federal Communications Commission Record 10 FCC Red No. 14 where the presumption in favor of ADI carriage rules further provide, in accordance with the requirements would result in cable subscribers losing access to of the Act, that a station not be deleted from carriage local stations because they are outside the ADI in during the pendency of an ADI change request.9 which a local cable system operates, the FCC may 7. Adding communities to a station©s ADI generally en make an adjustment to include or exclude particular titles that station to insist on cable carriage in those com communities from a television station©s market con munities. However, this right is subject to several sistent with Congress© objective to ensure that televi conditions: 1) a cable system operator is generally required sion stations be carried in the areas which they serve to devote no more than one-third of its activated channel and which form their economic market. 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 increase in copyright liability resulting from carriage, and 4) the sys [This subsection] establishes certain criteria which the tem operator is not required to carry the signal of any Commission shall consider in acting on requests to station whose signal substantially duplicates the signal of modify the geographic area in which stations have any other local signal carried or the signals of more than signal carriage rights. These factors are not intended one local station affiliated with a particular broadcast net to be exclusive, but may b.e used to demonstrate that work. If, pursuant to these requirements, a system operator a community is part of a particular station©s market.6 elects to carry the signal of only a single affiliate of a broadcast network, it is obliged to carry the affiliate from 5. The Commission provided guidance in its Report and within the ADI whose city of license is closest to the Order in MM Docket 92-259, supra, to aid decision making principal headend of the cable system. 10 Accordingly, based in these matters, as follows: on the specific circumstances involved, the addition of communities to a station©s ADI may guarantee it cable carriage and specific channel position rights; simply For example, pro the historical carriage of the station vide the system operator with an expanded list of must could be illustrated by the submission of documents carry signals from which to choose, i.e., when it has used listing the cable system©s channel line-up (e.g., rate up its channel capacity mandated for broadcast signals cards) for a period of years. To show that the station carriage, or determined which of duplicating network affili provides coverage or other local service to the cable ated stations are entitled to carriage priority. community (factor 2), parties may demonstrate that the station places at least a Grade B coverage contour over the cable community or is located close to the MARKET FACTS AND ARGUMENTS OF THE PARTIES community in terms of mileage. Coverage of news or 8. other programming of interest to the The communities at issue in this proceeding are lo community cated in Polk County could be demonstrated by program logs or other and Indian River County, Florida. descriptions of local Polk County is within the Tampa-St. Petersburg ADI, and program offerings. The final fac Indian tor concerns viewing patterns in the cable commu River County is within the West Palm Beach-Ft. nity in cable and noncable Pierce-Vero Beach ADI. WOFL is located in Orlando, homes. Audience data Florida in the Orlando-Daytona-Melbourne clearly provide appropriate evidence about this fac ADI. tor. In this regard, we note that surveys such as those 9. In support of its petition to add Polk County to its used to demonstrate significantly viewed status could ADI, WOFL argues that it has been carried on seven be useful. However, since this factor requires us to different cable systems in Polk County since as early as evaluate viewing on a community basis for cable and 1984, citing to the Television and Cable Factbooks for var noncable homes, and significantly viewed surveys ious years as evidence that WOFL has been continuously typically measure viewing only in noncable house carried and is currently carried on these systems. 11 Regard holds, such surveys may need to be supplemented ing local coverage, WOFL attaches to its petition a copy of with additional data concerning viewing in cable its coverage map which shows that it places a Grade B homes.7 contour over the Northeast portion of Polk County.