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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 (CSR3906A) 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 RaleighDurham, 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 (CSR4082M)"r(0*0*0*)" requesting carriage on Time Warner's cable system. This petition is opposed by Time"(0*0*0*(" Warner, and WYED has replied."(0*0*0*("Ԍ X-ԙ   BACKGROUND  Y-TP  x2. Pursuant to 4 of the Cable Television Consumer Protection and Competition Act  Y-of 1992 ["1992 Cable Act"]| Y4-#Xw PE37=9XP#э Pub. L. No. 102385, 106 Stat. 1460 (1992).| and implementing rules adopted by the Commission in its  Y-Report and Order in MM Docket 92259,ry Y-#Xw PE37=9XP#э 8 FCC Rcd 2965, 29762977 (1993).r a commercial television broadcast station is  Y-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  Ya-defined by the Arbitron audience research organization.aa* Y< -#Xw PE37=9XP#э Section 4 of the 1992 Cable Act specifies that a commercial broadcasting station's market shall be determined in the manner provided in 73.3555(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 purposes of the broadcast multiple ownership rules. Section 76.55(e) of the Commission's Rules provides that the ADIs to be used for purposes of the initial implementation of the mandatory carriage rules are those published in  Y-Arbitron's 19911992 Television Market Guide. An ADI is a geographic market  YJ-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 homemarket stations receive a preponderance of total viewing hours in the county.  Y -For purposes of this calculation, both overtheair and cable television viewing are included. S  Y -#Xw PE37=9XP#э Because of the topography involved, certain counties are divided into more than one sampling unit. Also, in certain circumstances, a station may have its home county assigned to an ADI even though it receives less than a preponderance of the audience in that county.  Y-For a more complete description of how counties are allocated, see Arbitron's Description of  Y-Methodology. x3. This section of the 1992 Cable Act also provides that the Commission may: x` ` with respect to a particular television broadcast station, x` ` include additional communities within its television market x` ` or exclude communities from such station's television market x` ` to better effectuate the purposes of this section. In considering such requests, the 1992 Cable Act provides that: x` ` the Commission shall afford particular attention to the x` ` value of localism by taking into account such factors as x` ` (I) whether the station, or other stations located in the"0*(("Ԍx` ` same area, have been historically carried on the cable x` ` system or systems within such community; x` ` (II) whether the television station provides coverage or x` ` other local service to such community; x` ` (III) whether any other television station that is eligible x` ` to be carried by a cable system in such community in x` ` fulfillment of the requirements of this section provides x` ` news coverage of issues of concern to such community x` ` or provides carriage or coverage of sporting and other x` ` events of interest to the community; and  Y - x` ` (IV) evidence of viewing patterns in cable and noncable x` ` households within the areas served by the cable system or  Y -x` ` systems in such community.p  Y -#Xw PE37=9XP#э 47 U.S.C. 534(h)(1)(C)(ii).p  Yy-x4. The legislative history of this provision indicates that: XxX` ` 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  YN-out individual stations serving the same area and request that the cable system's community be deleted from the station's  Y -television market. y YJ!-#Xw PE37=9XP#э H.R. Rep. 102628, 102d Cong., 2d Sess. 9798 (1992). x`  Y-x5. The Commission provided guidance in MM Docket 92259, supra, to aid decision making in these matters, as follows: XxX` ` For example, the historical carriage of the station could be illustrated by the submission of documents listing the cable""*0*((#"  Y-system's channel lineup (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  YJ-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  Y -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  Y}-cable homes.} Y-#Xw PE37=9XP#э MM Docket No. 92259, 8 FCC Rcd at 2977.x`  Yf-  YO-x6. In adopting rules to implement this provision, the Commission indicated that changes requested should be considered on a communitybycommunity basis rather than on a countybycounty basis, and that they should be treated as specific to particular stations rather  Y -than applicable in common to all stations in the market.p { Y6-#Xw PE37=9XP#э Id. at 2977, 2977 n. 139.p The rules further provide, in accordance with the requirements of the 1992 Cable Act, that a station not be deleted from  Y-carriage during the pendency of an ADI change request.f . Y-#Xw PE37=9XP#э 47 C.F.R. 76.59. f  X-  MARKET FACTS AND ARGUMENTS OF THE PARTIES ĐTP  Yi-x7. 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 RaleighDurham, 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. "! 0*((""Ԍx8. 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  Y-to the communities in question, or any other locally oriented programming, unlike the other  Y-commercial stations in the ADI.1 x Y-#Xw PE37=9XP#э These are Stations WTVD (ABC, Channel 11) and WRDC (NBC, Channel 28), both Durham, North Carolina; WKFT (Ind., Channel 40) and WFCT (Ind., Channel 62), both Fayetteville, North Carolina; WRALTV (CBS, Channel 5) and WLFLTV (Fox, Channel 22), both Raleigh, North Carolina; and WRMY (Ind., Channel 47), Rocky Mount, North  Y -Carolina. Time Warner submits listings from the May 1521, 1993 TV Guide, Eastern North Carolina edition, to document this argument.1 According to Time Warner, "WYED's programming consists primarily of reruns and some firstrun syndicated programming." Time Warner  Y_-notes that WYED is not significantly viewed in either Cumberland County or Sampson  YH-County,_ H Y-#Xw PE37=9XP#э For an independent station to be deemed to be significantly viewed in a community or a county, it must achieve in noncable homes a share of viewing hours of at least 2 percent (total week hours) and a net weekly circulation of at least 5 percent. 47 C.F.R. 76.5(i)._ and cites February 1993 Nielsen data for the RaleighDurham Designated Market Area which show that WYED achieved only a 0.1 rating in cable homes and a 0.5 rating in noncable homes. x9. 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, WRALTV, and WLFLTV, which Time Warner presently carries. This similarity in coverage area underscores WYED's identity as part of the RaleighDurham ADI, the station claims, as do its inclusion in Fayetteville and Raleigh newspapers' local television listings, WYED's inclusion in RaleighDurham 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  Y|-addition states that it carries monthly a program about the Carolina Mudcats, a Raleigharea 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 alcoholfree party for area high school graduates at a Raleigh nightclub, and will be carrying Cumberland"7 0*((." County high school football games and a Fayetteville area gospel music show if the station  Y-can obtain cable carriage. The station airs area public service announcements,  Yb-#Xw PE37=9XP#э WYED submits a list of 36 organizations and events for which it has aired public service announcements. The communities in question are represented by three of the announcements. and also plans to begin local weather cutins 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. x 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.  Y -x 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 RaleighDurham 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 RaleighDurham ADI that are part of Time Warner's technically integrated system.  X- ANALYSIS AND DECISION  TP x 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  Yg-Warner carries the other commercial licencees in the RaleighDurham ADI. This is precisely  YP-the situation the 1992 Cable Act was designed to remedy. PK YL!-#Xw PE37=9XP#э See Act III Broadcasting of Nashville, Inc., 8 FCC Rcd 8544, 8546 (1993). 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  Y -particular community or communities.Z  Y%-#Xw PE37=9XP#э Id.Z 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"0*(( "ԫTV, and WLFLTV, which Time Warner presently carries, underscores WYED's and the subject communities' identity as part of the RaleighDurham 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  Y-in question.6x Y-#Xw PE37=9XP#э That other ADI licensees do in fact provide coverage of and service to the communities in question is not to the contrary. We do not believe that Congress intended this criterion to operate as a bar to a station's ADI claim whenever other stations could also be shown to serve the communities at issue, but rather that this criterion was intended to  Y -enhance a station's claim where it could be shown that other stations do not serve the communities at issue.6  Y_-x 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 offair 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  Y -achieve appreciable offair 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  Y -its net weekly circulation is 19.  Yw-#Xw PE37=9XP#э Arbitron, Television County Coverage: North Carolina (CableControlled Counties), 1992. In fact, WYED's Sampson County figures meet the criteria for being deemed significantly viewed. We note, though, that these data are countywide, rather than communityspecific. 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  Yb-not fairly reflective of viewing in the actual communities in question.b  Y-#Xw PE37=9XP#э See, e.g., RKZ Television, Inc., 8 FCC Rcd 8008, 8010 (1993). x 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."  Y-MM Docket 92259, 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. x15. 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 from3^3   Y~- 3^4   Yg-"gW 0*((]"Ԍ3^6xWYED at the system's principal headend, and WYED has agreed to indemnify Time Warner  Y-against any increased copyright liability resulting from WYED's carriage.a Yb-#Xw PE37=9XP#э The pleadings in this proceeding contain a dispute as to meaning of paragraph 46 of  YK-the Commission's Report and Order in MM Docket No. 92259, 8 FCC Rcd 2965, 2977 (1993)("During the pendency of a petition before the Commission, cable operators will be required to maintain the status quo with regard to signal carriage."), and the question of what it means with respect to the maintenance of the status quo during the pendency of a ADI modification petition. Having ordered carriage of WYED's signal, we do not believe it necessary to address that dispute further at this time.  x x16. 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.  X_-  ORDERING CLAUSES  TP x17. 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 (CSR3906A) filed June 2, 1993 by Time Warner Cable IS DENIED. x18. IT IS FURTHER ORDERED, That the petition (CSR4082M) filed September 23, 1993, by Group H Broadcasting Corporation IS GRANTED. x19. IT IS FURTHER ORDERED, That Time Warner Cable SHALL COMMENCE  Yb-CARRIAGE of the signal of WYED fortyfive (45) days from the release date of this Order on Time Warner Cable's system serving Fayetteville, North Carolina and neighboring  Y6-communities. x20. These actions are taken pursuant to authority delegated by 0.321 of the Commission's Rules. x` `  hh FEDERAL COMMUNICATIONS COMMISSION x` `  hh William H. Johnson x` `  hh Deputy Chief, Cable Services Bureau