$//MO&O Granting WOCD carriage in Albany, NY, DA-95-65//$ $/76.59 Modification of television markets/$ $76.61 Disputes concerning carriage/$ $/300.534 Carriage of local commercial television signals/$ ///newjob/// $///DA 95-65,1/20/95///$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA-95-65 In re: ) ) Time Warner Cable ) CSR-4115-A Albany, New York et al. ) ) For Modification of the Albany- ) Schenectady-Troy, New York ADI ) ) Complaint of Cornerstone Television,) CSR-4149-M Inc. against Time Warner Cable ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: January 17, 1995 Released: January 25, 1995 By the Cable Services Bureau: INTRODUCTION 1. On October 5, 1993, Time Warner Cable ("Time Warner") filed the above- captioned petition for special relief (CSR-4115-A) seeking to modify the Albany- Schenectady-Troy, New York Area of Dominant Influence (ADI) relative to Television Broadcast Station WOCD (Ind., Ch. 55), Amsterdam, New York. Specifically, Time Warner requests that the communities served by its Albany, New York cable system be excluded from WOCD's television market, which is considered part of the Albany ADI, for the purpose of the cable television mandatory broadcast signal carriage rules. Subsequently, on November 3, 1993, a petition on behalf of Cornerstone Television, Inc., licensee of WOCD, (CSR-4149-M) was filed against Time Warner for its failure to add WOCD and seeking immediate carriage on the system. Oppositions and replies to both petitions have been filed. In light of the fact that the issues in these separate pleadings are related, they will be dealt with simultaneously herein. BACKGROUND 2. Pursuant to 4 of the Cable Television Consumer Protection and Competition Act of 1992 ["1992 Cable Act"] and implementing rules adopted by the Commission in its Report and Order in MM Docket 92-259, a commercial television broadcast station is 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. An ADI is a geographic market designation that defines each television market exclusive of others, based on measured viewing patterns. Essentially, each county in the United States is 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 and cable television viewing are included. 3. This section of the 1992 Cable Act also provides that the Commission may: with respect to a particular television broadcast station, include additional communities within its television market or exclude communities from such station's television market to better effectuate the purposes of this section. In considering such requests, the Act provides that: the Commission shall afford particular attention to the value of localism by taking into account such factors as - (I) whether the station, or other stations located in the same area, have been historically carried on the cable system or systems within such community; (II) whether the television station provides coverage or other local service to such community; (III) whether any other television station that is eligible to be carried by a cable system in such community in fulfillment of the requirements of this section provides news coverage of issues of concern to such community or provides carriage or coverage of sporting and other events of interest to the community; and (IV) evidence of viewing patterns in cable and noncable households within the areas served by the cable system or systems in such community. 4. The legislative history of this provision indicates that: The provisions of [this subsection] reflect a recognition that the Commission may conclude that a community within a station's ADI may be so far removed from the station that it cannot be deemed part of the station's market. It is not the Committee's intention that these provisions be used by cable systems to manipulate their carriage obligations to avoid compliance with the objectives of this section. Further, this section is not intended to permit a cable system to discriminate among several stations licensed to the same community. Unless a cable system can point to particularized evidence that its community is not part of one station's market, it should not be permitted to single out individual stations serving the same area and request that the cable system's community be deleted from the station's television market. 5. The Commission provided guidance in MM Docket 92-259, supra, to aid decision making in these matters, as follows: For example, the historical carriage of the station could be illustrated by the submission of documents listing the cable system's channel line-up (e.g., rate 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 the station places a Grade B coverage contour over the cable community or is located close to the community in terms of mileage. Coverage of news or other programming of interest to the community could be demonstrated by program logs or other descriptions of local program offerings. The final factor concerns viewing patterns in the cable community in cable and noncable homes. Audience data clearly provide appropriate evidence about this factor. In this regard, we note that surveys such as those used to demonstrate significantly viewed status could be useful. However, since this factor requires us to evaluate viewing on a community basis for cable and noncable homes, and significantly viewed surveys typically measure viewing only in noncable households, such surveys may need to be supplemented with additional data concerning viewing in cable homes. 6. In adopting rules to implement this provision, the Commission indicated that changes requested should be considered on a community-by-community basis rather than on a county-by-county basis and that they should be treated as specific to particular stations rather than applicable in common to all stations in the market. The rules further provide, in accordance with the requirements of the Act, that a station not be deleted from carriage during the pendency of an ADI change request. MODIFICATION ARGUMENTS 7. The communities here in question are all in Albany County, New York, which is located within the Albany-Schenectady-Troy, New York ADI. Amsterdam, New York, WOCD's city of license, is considered to be a part of the same ADI and is approximately 26 miles from the communities served by Time Warner. 8. In support of its petition, Time Warner states that while technically Amsterdam is considered to be part of the same ADI as Albany, it is not considered part of the same economic market. Time Warner notes that historically WOCD has never been carried on its Albany system and infers that this choice reflects a lack of desire by its subscribers for WOCD's programming. While Time Warner concedes that WOCD's predicted Grade B contour encompasses the Albany area, it argues that signal strength tests demonstrate that WOCD does not provide a good quality signal to the system headend. Moreover, WOCD broadcasts religious programming 24 hours a day which does not qualify as local news or public affairs programming. Time Warner contends that the local Albany stations already provide extensive local news and events, as well as religious programming comparable to that of WOCD. Finally, Time Warner points out that WOCD's viewership ratings were so low that the 1993 Nielsen Daypart for the Albany ADI did not even report them. The station is also not considered to be significantly viewed in any county where Time Warner's system operates. 9. In response, WOCD states that, as discussed more fully in its must-carry complaint, its signal is clearly viewable, but even if it were not, it has made adequate provision to provide a good quality signal. While it is predominantly a religious station, WOCD maintains that its programming is broader in appeal than Time Warner allows. It points out that many of its programs are focused on entertainment, discussion, news and instruction. Significant portions of this programming, including public affairs, are even locally produced and directed specifically to the Albany area. Indeed, WOCD argues, over a 15-month period, it received correspondence and donations from 148 viewers in the Albany area, a figure which clearly demonstrates that its signal is viewable and of interest to Albany residents. This is particularly important since other than the Family Channel (which WOCD indicates is no longer considered a religious network), Time Warner's system is devoid of religious-oriented programming. Further, WOCD argues that the fact that it has not previously been carried by Time Warner is not an issue for a station which is part of the same market. In any event, it avers that the 1992 Cable Act was designed to override instances of carriage discrimination. Finally, WOCD states that it is not yet represented by Nielsen because it only went on the air in the latter part of 1992, too soon for its survey data to be available. 10. Time Warner states in reply that WOCD completely misreads the Cable Act. Lack of historical carriage is relevant and Time Warner was well within its rights to deny WOCD prior carriage, especially considering that the must carry rules were twice struck down during WOCD's on-air history. Moreover, WOCD's contention that it should be carried more on the basis of its religious content than its local nature is a violation of the First Amendment. In addition, while WOCD argues that it provides a significant amount of local programming it merely attaches an undocumented chart as proof. Finally, Time Warner argues that if one looks at the local viewership WOCD claims to have, the ratio to that of the overall number of subscribers would be far too small to take into account. DISCUSSION 11. With regard to the first criteria which deals with historic carriage on a cable system, we note that the 1992 Cable Act was adopted in part to cure past discriminatory signal carriage practices. 47 U.S.C. 534 Where, as is the case here, a petitioner seeks to delete a station from a relevant ADI with respect to a cable system, we believe that failure to establish historic carriage should not be given great weight. While it is true that there is no history of WOCD's carriage on Time Warner's system, we find that other factors outweigh this argument: 1) WOCD's transmitter is located only 26 miles from Time Warner's headend and its predicted Grade A contour encompasses the system communities at almost twice that distance at 47.6 miles. While Time Warner argues that 26 miles is a considerable distance, we note that in the Commission's decision in RKZ Television, Inc., 8 FCC Rcd 8008 (1993), the petitioner relied on exactly the same distance to demonstrate why certain communities should be added to a particular station's ADI. 2) Under its current ownership, WOCD is a relatively new station which began operation on May 8, 1992. Although Time Warner relies on the fact that A.C. Nielsen failed to report WOCD's ratings and that WOCD is not significantly viewed in the counties it serves, we disagree as to such factors' importance in this instance. As noted in paragraph 5 above, viewing patterns and/or significantly viewed surveys to be relied upon in ADI requests are ideally to be conducted on a community-by-community basis. The methodology inherent in such surveys is considerably stricter and a better indication of actual viewing patterns in individual communities. In any case, even when we accept county-wide surveys, it should be taken into account that stations can take up to three years to establish their viewing patterns. That is why 76.54 of our rules allows viewership data from the first three years of operation. Since WOCD went on the air on May 8, 1992, it could use data through May 8, 1995 to establish significantly- viewed status in particular counties. 3) While the correspondence and donations cited by WOCD are admittedly not a large percentage of the Albany area population, it is apparent nevertheless that there is some interest in and reception of WOCD in the Albany area. This interest would surely increase with access to a broader range of viewers as a result of cable carriage. In addition, we are satisfied that WOCD is providing a reasonable amount of locally-oriented programming in its weekly schedule. 12. Furthermore, because WOCD is a specialty station in that it broadcasts primarily religious programming, the Commission has previously recognized that religious stations, such as WOCD, once referred to as specialty stations, are capable of "offer[ing] desirable diversity of programming. . . ," yet typically attract limited audiences. First Report and Order in Docket 20553, 58 FCC 2d 442, 452 (1976), recon. denied, 60 FCC 2d 661 (1976). We continue to believe, as we did then, that the fact that such stations attract limited audiences must be taken into account in determining the equities concerning such stations' rights to cable carriage. Consequently, based upon the above, we find that Time Warner has failed to carry its burden of establishing that the public interest would be served by deleting WOCD from the Albany-Schenectady-Troy ADI as it relates to carriage on Time Warner's cable system at issue. MUST CARRY ARGUMENTS 13. In its must carry complaint, WOCD emphasizes that it is a local commercial station licensed to a community located within the Albany-Schenectady-Troy, New York ADI and that it provides a more than adequate signal to the Time Warner headend. Indeed, it states that it is inconceivable that a 5 MW transmitter, located 26 air miles from Albany, would fail to provide the required -45 dBm signal. WOCD points out that the two tests that Time Warner performed not only were conducted a mere 25 feet above ground level, but have questionable methodology. WOCD maintains that in neither test did Time Warner take into account that the treeline is at 65 feet or that the minimum level in this instance at which its signal should be measured is 70 feet. Even when confronted with this fact, WOCD avers that Time Warner has been unwilling to conduct new tests at the appropriate height even though WOCD is willing to provide, at its own expense, the appropriate equipment to do so. WOCD therefore requests that the Commission order Time Warner to carry its signal within the standard 45 days or, in the alternative, require Time Warner to conduct signal strength tests consistent with Commission criteria and add WOCD when its proper signal strength is demonstrated. 14. In its opposition to the must carry complaint, Time Warner reiterates the arguments it raised in its ADI petition. It maintains that, based on its signal quality tests, WOCD's signal is clearly substandard and it is therefore not entitled to carriage. In any event, Time Warner feels that it is under no obligation to carry WOCD during the pendency of its ADI modification request and it argues that WOCD's complaint is inappropriate and premature and should be dismissed. Time Warner concludes that to order it to carry WOCD prior to action on its ADI petition would cause severe disruption to its system, especially should that petition be granted. 15. WOCD's reply states that Time Warner completely ignores the issues raised in the must carry complaint and inappropriately seeks to intertwine that complaint with its own separately-filed ADI petition. Moreover, it continues, Time Warner has failed to address or even meet the Commission's previously enunciated signal quality measurement standards and has therefore not met its burden of proof. WOCD concedes that the Commission's engineering criteria does not specifically discuss the height of such measurements, but it argues that "sound engineering measurement practices" should require that any prudent cable operator measure a signal at the level at which it would place a receiving antenna. A virtually ground-level measurement, such as that of Time Warner at 25 feet, is totally unacceptable. DISCUSSION 16. First, with respect to the standard to be used to determine what constitutes a "good quality" signal, we note that 614(h)(1)(b)(iii) of the Communications Act of 1934, as amended, and the 1992 Cable Act provide the requisite signal levels for VHF and UHF commercial stations at a cable system's headend. To establish the availability of a VHF commercial station's signal, a standard of -49 dBm was set at a cable system's headend while a standard of -45 dBm was established for UHF commercial stations' signals. In this instance, Time Warner has determined WOCD's signal strength to be below the requisite level for a UHF commercial station. However, we find that the engineering data it used to support its determination is unacceptable. Generally, if the test results are less than -51 dBm for a UHF station, we believe that at least four readings must be taken over a two-hour period. Where the initial readings are between -51 dBm and -45 dBm, inclusive, we believe that the readings should be taken over a 24-hour period with measurements not more than four hours apart to establish reliable test results. This is the best evidence of the availability of a station at a subject system headend. 17. In addition to the information required by our rules to be furnished to the affected station when there is a dispute over signal level measurements, cable operators are expected to employ sound engineering measurement practices. Therefore, signal strength surveys should, at a minimum, include the following: 1) specific make and model numbers of the equipment used, as well as its age and most recent date(s) of calibration; 2) description(s ) of the characteristics of the equipment used, such as antenna ranges and radiation patterns; 3) height of the antenna above ground level and whether the antenna was properly oriented; and 4) weather conditions and time of day when tests were done. 18. In our review, we note that on the two occasions that Time Warner conducted tests of WOCD's signal (April 20, 1993 and May 11, 1993), it did only one reading instead of the required four readings over a two-hour period. In addition, it failed to provide the specifics of its tests as set forth above. It should also be pointed out that the 25 foot measurement height used by Time Warner is apparently considerably less than that called for by the local terrain. Not only is the treeline said to be at 65 feet, but WOCD states in its complaint that no UHF television broadcast reception equipment is located on Time Warner's approximately 120 foot tower below the 70 foot level. When measured against our criteria, therefore, we conclude that the determination reached by Time Warner is insufficient to demonstrate that WOCD's signal is not of "good quality" at its system headend. ORDER 19. In view of the foregoing, we find that grant of Time Warner's ADI petition (CSR-4115-A) is not in the public interest. Further, we find that grant of WOCD's must carry complaint (CSR-4149-M) is in the public interest. 20. Accordingly, IT IS ORDERED, pursuant to 614(C) of the Communications Act of 1934, as amended (47 U.S.C. 534) and 76.59 of the Commission's Rules (47 CFR 76.59), That the captioned petition for special relief, filed October 5, 1993, on behalf of Time Warner Cable, IS DENIED. In addition, pursuant to 615(J)(3) (47 U.S.C. 535), the petition filed November 3, 1993, on behalf of Cornerstone Television, Inc., IS GRANTED and Time Warner Cable IS ORDERED to commence carriage of Station WOCD forty-five days from the release date of this Order unless Time Warner submits within fifteen days the engineering data required herein to support its assertion of poor signal quality from WOCD at Time Warner's prinicpal headend. 21. These actions are taken pursuant to authority delegated under 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau