$//Group H Broadcasting (WYED), MO&O, DA-95-82//$ $/76.59 Modification of television markets/$ $/76.61 Disputes concerning carriage/$ $/300.534 Carriage of Local Commercial Television Signals/$ ///newjob/// $////DA 95-82////$ Before the Federal Communications Commission Washington DC 20554 DA-95-82 In re: ) ) Time Warner Cable ) CSR-3906-A ) For Modification of Television ) Broadcast Station WYED's ADI ) ) Complaint of Group H Broadcasting ) CSR-4082-M Corporation against Time Warner Cable ) ) Request for Carriage ) MEMORANDUM OPINION AND ORDER Adopted: January 19, 1995 Released: January 26, 1995 By the Cable Services Bureau: INTRODUCTION 1. Time Warner Cable ["Time Warner"], operator of a cable television system serving Fayetteville, North Carolina, and neighboring communities, has filed a petition for special relief (CSR-3906-A) seeking to delete the communities of Autryville, Falcon, Fayetteville, Fort Bragg, Godwin, Hope Mills, Pope Air Force Base, Spring Lake, Stedman, and Wade, North Carolina, and neighboring areas of Cumberland County, North Carolina, from the "area of dominant influence" of Television Broadcast Station WYED (Ind., Channel 17), Goldsboro, North Carolina, which station has as its market the Raleigh-Durham, North Carolina "area of dominant influence." Time Warner's petition is opposed by Group H Broadcasting Corporation ["WYED"], licensee of Television Broadcast Station WYED, and Time Warner has replied. In addition, on September 23, 1993, WYED filed a petition (CSR-4082-M) requesting carriage on Time Warner's cable system. This petition is opposed by Time Warner, and WYED has replied. 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 1992 Cable 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 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 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 1992 Cable Act, that a station not be deleted from carriage during the pendency of an ADI change request. MARKET FACTS AND ARGUMENTS OF THE PARTIES 7. Time Warner Petition for ADI Modification. The communities in question are located in the central and northern portions of Cumberland County, North Carolina, with the exception of Autryville, which is located just east of Cumberland County, in Sampson County. Both Cumberland and Sampson Counties are part of the Raleigh-Durham, North Carolina ADI, as is Goldsboro, WYED's city of license. Cumberland County is at the southern edge of the ADI. Fayetteville, Time Warner's headend community, is located in the center of Cumberland County, approximately 55 miles southwest of Goldsboro. 8. In support of its petition, Time Warner notes that it does not carry nor has the system ever carried WYED in the communities in question since the station began operations in 1988. While WYED may place a predicted Grade B contour over the communities in question, Time Warner argues that WYED in fact provides no local news or sports coverage to the communities in question, or any other locally oriented programming, unlike the other commercial stations in the ADI. According to Time Warner, "WYED's programming consists primarily of reruns and some first-run syndicated programming." Time Warner notes that WYED is not significantly viewed in either Cumberland County or Sampson County, and cites February 1993 Nielsen data for the Raleigh-Durham Designated Market Area which show that WYED achieved only a 0.1 rating in cable homes and a 0.5 rating in noncable homes. 9. In opposition to Time Warner, WYED argues that its predicted Grade B contour encompasses all of the communities in question. WYED states that its Grade B coverage area is similar to those of Stations WTVD, WRDC, WKFT, WRAL-TV, and WLFL-TV, which Time Warner presently carries. This similarity in coverage area underscores WYED's identity as part of the Raleigh-Durham ADI, the station claims, as do its inclusion in Fayetteville and Raleigh newspapers' local television listings, WYED's inclusion in Raleigh- Durham market surveys by Arbitron and Nielsen, and Fayetteville advertising agencies' purchases of time on WYED to promote Fayetteville events. That Time Warner has refused to carry WYED should be of limited significance to determining WYED's rights, asserts the station. WYED contends that its independent programming provides desirable diversity to the options currently available to Time Warner's subscribers, and cites examples such as Baltimore Orioles baseball games and Raleigh Ice Caps hockey games, as well as series such as "Bonanza," "Hill Street Blues," "The Rifleman," and "The Ed Sullivan Show." WYED also claims that its programming such as "Combat," "Rat Patrol," "The Three Stooges," and various westerns and outdoor and sports programs is designed to appeal to a young male audience, including those stationed at Fort Bragg and at Pope Air Force Base. WYED in addition states that it carries monthly a program about the Carolina Mudcats, a Raleigh-area minor league baseball team, and also airs weekly "The Jimmy Swinson Show," which focuses on area clubs and activities. WYED notes that it has sponsored an alcohol-free party for area high school graduates at a Raleigh nightclub, and will be carrying Cumberland County high school football games and a Fayetteville area gospel music show if the station can obtain cable carriage. The station airs area public service announcements, and also plans to begin local weather cut-ins three times a day for the entire ADI. WYED asserts that its poor viewership is due to its lack of cable carriage, which is essential to the station's survival. 10. In reply to WYED, Time Warner notes that the station has failed to refute Time Warner's arguments. Nationally syndicated programming does not constitute local news or other service within the meaning of the 1992 Cable Act, contends Time Warner, nor does WYED's programming focusing on Raleigh and its environs constitute local programming to Time Warner's subscribers. 11. WYED Carriage Complaint. In support of its carriage complaint, WYED states that, as a commercial television broadcast station licensed to Goldsboro, North Carolina, it is entitled to carriage on those portions of Time Warner's system that are located within the Raleigh-Durham ADI, unless the station fails to provide an adequate quality signal to Time warner's principal headend in Fayetteville, or if carriage of WYED would cause Time Warner to incur additional copyright liability. WYED submits copies of correspondence demonstrating that Time Warner concedes it can receive an adequate quality signal from WYED at the system's Fayetteville headend, and also that WYED has agreed to indemnify Time Warner for any additional copyright liability resulting from WYED's carriage in communities outside of the Raleigh-Durham ADI that are part of Time Warner's technically integrated system. ANALYSIS AND DECISION 12. We shall deny Time Warner's petition. We note initially that Time Warner concedes that though it has never carried WYED since the station began operations, Time Warner carries the other commercial licencees in the Raleigh-Durham ADI. This is precisely the situation the 1992 Cable Act was designed to remedy. With regard to the question of service to the communities in question, we have said that will take into consideration evidence that the station does not actually provide coverage or other local service to the particular community or communities. Here, however, the communities in question are within WYED's regular predicted service coverage area. Further, we agree that the similarity of coverage areas between WYED and stations WTVD, WRDC, WKFT, WRAL- TV, and WLFL-TV, which Time Warner presently carries, underscores WYED's and the subject communities' identity as part of the Raleigh-Durham ADI. Despite Time Warner's attempt to show that WYED's minimal local service is not at all particular to Time Warner's communities, we believe that WYED has sufficiently demonstrated that its current and planned programming is in fact designed to serve the needs and interests of the communities in question. 13. While WYED lacks a history of cable carriage in the communities in question, we are not inclined to give this factor great weight in cases in which appreciable off-air viewership of a station is demonstrated. With respect to the question of viewership, WYED claims that its viewership is poor because it lacks cable carriage. However, the station does achieve appreciable off-air viewership. In noncable homes in Cumberland County, though the station's share is not reported, WYED has a net weekly circulation of 7, while in Sampson County, in which Autryville is located, WYED's share in noncable homes is 2 and its net weekly circulation is 19. In fact, WYED's Sampson County figures meet the criteria for being deemed significantly viewed. We note, though, that these data are county-wide, rather than community-specific. We have stated, however, that we shall accept such data as probative, although not conclusive, in cases of this type, absent evidence that such data are not fairly reflective of viewing in the actual communities in question. 14. The portion of the 1992 Cable Act allowing for modification of ADIs "is intended to permit the modification of a station's ADI to reflect its individual situation." MM Docket 92-259, 8 FCC Rcd at 2977. In the present case, Time Warner has not sufficiently demonstrated that the communities in question are not part of WYED's ADI. 15. Turning to WYED's complaint against Time Warner, we uphold WYED's complaint. WYED has clearly established that it is entitled to carriage on Time Warner's system. Time Warner concedes that it is capable of receiving an adequate signal from WYED at the system's principal headend, and WYED has agreed to indemnify Time Warner against any increased copyright liability resulting from WYED's carriage. 16. In view of the foregoing, we find that grant of Time Warner's petition is not in the public interest, and that grant of WYED's complaint is in the public interest. ORDERING CLAUSES 17. Accordingly, IT IS ORDERED, pursuant to 614(h)(1)(C) of the Communications Act of 1934, as amended (47 U.S.C. 534(h)(1)(C)) and 76.59 of the Commission's Rules (47 C.F.R. 76.59), That the petition for special relief (CSR-3906-A) filed June 2, 1993 by Time Warner Cable IS DENIED. 18. IT IS FURTHER ORDERED, That the petition (CSR-4082-M) filed September 23, 1993, by Group H Broadcasting Corporation IS GRANTED. 19. IT IS FURTHER ORDERED, That Time Warner Cable SHALL COMMENCE CARRIAGE of the signal of WYED forty-five (45) days from the release date of this Order on Time Warner Cable's system serving Fayetteville, North Carolina and neighboring communities. 20. These actions are taken pursuant to authority delegated by 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau