DA 96-148 Federal Communications Commission Record 11 FCC Rcd No. 6 preponderance of total viewing hours in the county. For Before the purposes of this calculation, both over-the-air and cable Federal Communications Commission television viewing are included.5 Washington, D.C. 20554 3. Under the Act, however, the Commission is also di- rected to consider changes in ADI areas. Section 4 provides that the Commission may: In re: with respect to a particular television broadcast sta- Petition of Time Warner Cable CSR-3905-A tion, include additional communities within its tele- vision market or exclude communities from such For Modification of Station station's television market to better effectuate the WKOI-TV's AD! purposes of this section. In considering such requests, the Act provides that: MEMORANDUM OPINION AND ORDER the Commission shall afford particular attention to Adopted: February 6, 1996; Released: March 4, 1996 the value of localism by taking into account such factors as -- - By the Cable Services Bureau: (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. Before the Commission is a petition for special relief (II) whether the television station provides coverage filed by Time Warner Cable ("Time Warner"). seeking to or other local service to such community; modify the Dayton, Ohio "area of dominant influence" (III) whether any other television station that is eli- ("AD!") to exclude the communities served by Time gible to be carried by a cable system in such commu- Warner from WKOI-TV's television market.' Trinity Broad- nity in fulfillment of the requirements of this section casting of Indiana, Inc. ("Trinity"), licensee of Station provides news coverage of issues of concern to such WKOI-TV (Ch. 43), Richmond, Indiana, filed an opposi- community or provides carriage or coverage of sport- tion to the petition, to which Time Warner has replied. ing and other events of interest to the community; and BACKGROUND (IV) evidence of viewing patterns in cable and noncable households within the areas served by the 2. Pursuant to §4 of the Cable Television Consumer cable system or systems in such community.6 Protection and Competition Act of 1992 ("1992 Cable Act")2 and implementing rules adopted by the Commission 4. The legislative history of this provision indicates that: in its Report and Order in MM Docket 92259, commercial television broadcast stations are entitled to assert mandatory carriage rights on cable systems located within the station's where the presumption in favor of AD! carriage market. A station's market for this purpose is its "area of would result in cable subscribers losing access to dominant influence" or ADI as defined by the Arbitron local stations because they are outside the ADI in audience research organization.4 An ADI is a geographic which a local cable system operates. the FCC may market designation that defines each television market ex- make an adjustment to include or exclude particular clusive of others, based on measured viewing patterns. communities from a television station's market con- Essentially, each county in the United States is allocated to sistent with Congress' objective to ensure that televi- a market based on which home-market stations receive a sion stations be carried in the areas which they serve and which form their economic market. The following communities affected by this petition include: poses of the broadcast multiple ownership rules. Section Bradford (OH 0697 and OH 0698); Covington (OH 0555): Piqua 76.55(e) of the Commission's Rules provides that the ADIs to be (OH 0134); Pleasant Hill (OH 0753); Tipp City (OH 0832); West used for purposes of the initial implementation of the man- Milton (OH 0808); St. Paris (OH 0700); Christiansburg (OH datory carriage rules are those published in Arbitron's 1655); Mechanicsburg (OH 0635): Sidney (OH 1002 and OH 1991-1992 Television Market Guide. 0051); Springfield (OH 0793, OH 0947, OH 1063); Troy (OH Because of the topography involved, certain counties are t)646); Urbana (OH 0607); West Liberty (OH 0636): and Yellow divided into more than one sampling unit. Also, in certain Springs (OH 1060) (collectively known as "the communities"). circumstances, a station may have its home county assigned to These communities are located in Clark. Greene, Miami,and art ADI even though it receives less than a preponderance of the Shelby Counties, Ohio. audience in that county. For a more complete description of 2 Pub. L. No. 102-385. 106 Stat. 1460 (3992). how counties are allocated, see Arbitron's Description of 1vfeth- 8 FCC Rcd 2965, 2976-2977 (1993). odology. " Section 6l4(h)(I)(C) of the 1992 Cable Act specifies that a 6 Communications Act of 1934, as amended, §6l4(h)(l)(C)(ii), broadcasting station's market shall be determined in the man- 47 U.S.C. 534(h)O)(C)Ci). ner provided in i73.3555(d)(3)(i) of the Commission's Rules, as in effect on May 1, 1991. This section of the rules, now redesignated §73.3555(e)(3)(i), refers to Arbitron's ADI for pur- 2902 11 FCC Rcd No. 6 Federal Communications Commission Record DA 96-148 MARKET FACTS AND ARGUMENTS OF THE PARTIES 7. In its petition for special relief, Time Warner seeks to delete the communities from WKOI-TV's ADI so that Time [This subsection] establishes certain criteria which the Commission shall consider in acting on requests to Warner's Dayton ADI cable systems in western Ohio will modify the geographic area in which stations have not have to carry that station's signal. Time Warner be- lieves that mandatory carriage of WKOI-TV in the commu- signal carriage rights. These factors are not intended to be exclusive, but may be used to demonstrate that nities does not serve the interests of localism intended by a community is part of a particular station's market.7 Congress, and that the station fails to satisfy any of the four market factors set forth in the 1992 Cable Act and the Commission's Rules. 5. The Commission provided guidance in its Report and Order in MM Docket 92-259, supra, to aid decision making 8. With regard to the historic carriage factor, the oper- in these matters, as follows: ator asserts that WKOI-TV was never carried in any of the communities)' As such, removing the communities from WKOI-TV's ADI would be consistent with Congressional For example, the historical carriage of the station intent because there would be no disruption to established could be illustrated by the submission of documents viewing patterns, nor would it deprive WKOI-TV of any listing the cable system's channel line-up (e.g., rate existing cable audience in the communities. Petitioner also cards) for a period of years. To show that the station alleges that WKOI-TV does not provide sufficient coverage provides coverage or other local service to the cable or adequate local service to the communities. The operator community (factor 2), parties may demonstrate that notes that 12 out of the 15 communities subject to this the station places at least a Grade B coverage contour petition fall outside the station's Grade B contour, and in over the cable community or is located close to the one instance, the Grade B contour covers only a part of a community in terms of mileage. Coverage of news or community)2 In addition, the average distance from Rich- other programming of interest to the community mond, Indiana, WKOI-TV's city of license, to the cable could be demonstrated by program logs or other headends serving the communities is more than 50 miles)3 descriptions of local program offerings. The final fac- As for programming, Time Warner states that WKOI-TV tor concerns viewing patterns in the cable commu- does little more than retransmit the TBN (Trinity Broad- nity in cable and noncable homes. Audience data casting Network) satellite feed. By broadcasting primarily clearly provide appropriate evidence about this fac- religious programming, contends Time Warner. WKOI-TV tor. In this regard, we note that surveys such as those caters to a highly specialized audience and the format has used to demonstrate significantly viewed status could little appeal for most of Time Warner's subscribers in the be useful. However, since this factor requires us to communities. Moreover, the station does not broadcast a evaluate viewing on a community basis for cable and sufficient amount of local programming directed at the noncable homes, and significantly viewed surveys communities; the sparse original programming WKOI-TV typically measure viewing only in noncable house- does air, such as "Praise the Lord," is specifically geared holds, such surveys may need to be supplemented toward Richmond, Indiana residents and not Dayton, Ohio with additional data concerning viewing in cable residents. As for other stations serving the market, Time homes.8 Warner states that several Dayton ADI stations, which have been historically carried on the cable system. provide an 6. In adopting rules to implement this provision, the extensive amount of local programming throughout each Commission indicated that changes requested should be broadcast day)4 Finally, the operator notes that WKOI-TV's considered on a community-by-community basis rather level of viewership does not rise to the level of significantly than on a county-by-county basis and that they should be viewed status in any of the counties affected by this peti- treated as specific to particular stations rather than ap- tion. Because WKOI-TV is a station watched by so few plicable in common to all stations in the market.'1 The viewers, requiring carriage of WKOI-TV will not serve the rules further provide, in accordance with the requirements interests or needs of Time Warner's subscribers.