10 FCC Red No. 9 Federal Communications Commission Record DA 95-892 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"]5 and implementing rules adopted by the Commission in its Report and Order in MM Docket 92-2S9,6 a commer cial television broadcast station is entitled to assert man In re: datory carriage rights on cable systems located within the station's market. A station's market for this purpose is its DeSoto Broadcasting, Inc. CSR-3899-A "area of dominant influence," or ADI, as defined by the Arbitron audience research organization.7 An ADI is a Venice, Florida geographic market designation that defines each television market exclusive of others, based on measured viewing For Modification of Station patterns. Essentially, each county in the United States is WBSV-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.8 3. Under the Act, however, the Commission is also di Adopted: April 19, 1995; Released: April 27, 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 communities within its tele INTRODUCTION tion, include additional vision market or exclude communities from such 1. DeSoto Broadcasting, Inc. ("DeSoto Broadcasting" or station's television market to better effectuate the "WBSV-TV"), licensee of Station WBSV-TV (Ind., Channel purposes of this section. 62), Venice, Florida, has filed the above-captioned petition for special relief seeking to include cable communities in considering such requests, the 1992 Cable Act provides Charlotte County,1 Lee County,2 DeSoto County,3 and In Manatee County, Florida (collectively known as "the Com that: munities") within the Sarasota, Florida "area of dominant influence" (ADI) for the purpose of obtaining carriage the Commission shall afford particular attention to under the Commission's cable television mandatory broad the value of localism by taking into account such cast signal carriage rules. WTOG-TV, Inc. ("WTOG"), li factors as- censee of Television Broadcast Station WTOG (Ind., (I) whether the station, or other stations located in Channel 44), St. Petersburg, Florida, and FCVS Commu the same area, have been historically carried on the nications ("FCVS" or "WEVU"), licensee of Television cable system or systems within such community; Broadcast Station WEVU (ABC, Channel 26), Naples, Flor ida, filed oppositions to the petition for special relief. (II) whether the television station provides coverage WBSV-TV filed a reply to the oppositions. 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 nity in fulfillment of the requirements of this section 1 In Charlotte County the cable communities are those served Florida, serving Ellenton, northern portions of Manatee County, by Storer Cable TV of Florida, Inc., serving Port Charlotte, Palmetto, and Parrish; and Storer Cable TV of Florida, Inc., unincorporated areas of Charlotte County, Punta Gorda, Wind serving Longboat Key (portions of which are in Sarasota Coun mill Village and Rotunda; Cable Two, Inc., serving ty) and portions of Manatee County. unincorporated areas of Charlotte County; Sunstate Cable Sys 5 Pub. L. No. 102-385, 106 Stat. 1460 (1992). tems, Inc., serving Lake Suzy Apartments and Newport Apart 6 8 FCC Red 2965, 2976-2977 (1993). ments; and Cablevision of Cape Coral, serving Punta Gorda. 7 Section 4 of the 1992 Cable Act specifies that a commercial 2 The cable communities in Lee County are those served by broadcasting station's market shall be determined in the man Storer Cable TV of Florida Inc., which serves Boca Grande, ner provided in §73.3555(d)(3)(i) of the Commission's Rules, as Lemon Bay Isles, Rotunda in Charlotte County and in effect on May 1, 1991. This section of the rules, now unincorporated areas of Englewood (half in Sarasota County redesignated §73.3555(e)(3)(i), refers to Arbitron's ADI for pur and half in Charlotte County). poses of the broadcast multiple ownership rules. Section 3 In DeSoto County the cable communities are those served by 76.55(e) of the Commission's Rules provides that the ADIs to be Storer Cable TV of Florida, Inc., serving Arcadia, portions of used for purposes of the initial implementation of the man DeSoto County and unincorporated areas of the county; USA datory carriage rules are those published in Arbitron's Cablesystems, Inc., serving East Arcadia; Telesat Cablevision, 1991-1992 Television Market Guide. Inc., serving Arcadia and unincorporated areas of DeSoto Coun 8 Because of the topography involved, certain counties are ty; and Sunstate Cable Systems, Inc., serving portions of DeSoto divided into more than one sampling unit. Also, in certain County. circumstances, a station may have its home county assigned to 4 The cable communities are those served by Paragon Commu an ADI even though it receives less than a preponderance of the nications, serving Bradenton, Anna Maria, Bradenton Beach, audience in that county. For a more complete description of Holmes Beach, and northern portions of Manatee County; Uni how counties are allocated, see Arbitron's Description of Meth versal Cablevision, serving Bradenton; Cablevision Industries of odology. 4491 DA 95-892 Federal Communications Commission Record 10 FCC Red No. 9 provides news coverage of issues of concern to such holds, such surveys may need to be supplemented community or provides carriage or coverage of sport with additional data concerning viewing in cable ing and other events of interest to the community; homes." and (IV) evidence of viewing patterns in cable and 6. In adopting rules to implement this provision, the noncable households within the areas served by the Commission indicated that changes requested should be cable system or systems in such community.9 considered on a community-by-community basis rather than on a county-by-county basis, and that they should be 4. The legislative history of this provision indicates that: treated as specific to particular stations rather than ap plicable in common to all stations in the market. 12 The rules further provide, in accordance with the requirements where the presumption in favor of ADI carriage of the 1992 Cable Act, that a station not be deleted from would result in cable subscribers losing access to carriage during the pendency of an ADI change request. 13 local stations because they are outside the ADI in 7. Adding communities to a station's ADI generally en which a local cable system operates, the FCC may titles that station to insist on cable carriage in those com make an adjustment to include or exclude particular munities. However, this right is subject to several communities from a television station's market con conditions: 1) a cable system operator is generally required sistent with Congress' objective to ensure that televi to devote no more than one-third of the system's activated sion stations be carried in the areas which they serve channel capacity to compliance with the mandatory signal and which form their economic market. 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 system operator is not required to carry the signal of [This subsection] establishes certain criteria which the any station whose signal substantially duplicates the signal Commission shall consider in acting on requests to of any other local signal carried, or the signal of more than modify the geographic area in which stations have one local station affiliated with a particular broadcast net signal carriage rights. These factors are not intended work. If, pursuant to these requirements, a system operator to be exclusive, but may be used to demonstrate that elects to carry the signal of only one such duplicating a community is part of a particular station's signal, the operator is obliged to carry the station from the market. 10 ADI whose city of license is closest to the principal headend of the cable system. 14 Accordingly, based on the 5. The Commission provided guidance in MM Docket specific circumstances involved, the addition of commu 92-259, supra, to aid decision making in these matters, as nities to a station's ADI may guarantee it cable carriage follows: and specific channel position rights, or may simply provide the system operator with an expanded list of must-carry signals from which to choose (i.e., when the system has For example, the historical carriage of the station used up its channel capacity mandated for broadcast signal could be illustrated by the submission of documents carriage, or determined which of duplicating network affili listing the cable system's channel line-up (e.g., rate ated stations are entitled to carriage priority). cards) for a period of years. To show that the station provides coverage or other local service to the cable community (factor 2), parties may demonstrate that MARKET FACTS AND ARGUMENTS the station places at least a Grade B coverage contour OF THE PARTIES over the cable community or is located close to the community in terms of mileage. Coverage of news or 8. The Florida communities that WBSV-TV seeks to add other programming of interest to the community to its ADI are located in DeSoto and Manatee Counties, could be demonstrated by program logs or other which are in the Tampa-St.