$//MO&O Granting ADI waiver of WTNH-TV, DA-95-541//$ $/300.534 Market Modification Requests/$ $/76.59 Modification of television markets/$ $///DA 95-541 3/21/95///$ ///newjob/// Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 DA-95-541 In re: ) ) CSR-3827-A Cook Inlet Communications, Inc. ) New Haven, Connecticut ) ) For Modification of the Hartford-New ) Haven, Connecticut ADI ) MEMORANDUM OPINION AND ORDER Adopted: March 17, 1995 Released:March 24, 1995 By the Cable Services Bureau: INTRODUCTION 1. Cook Inlet Communications Corp., licensee of Station WTNH-TV (ABC, Channel 8), New Haven, Connecticut, has filed a petition for special relief seeking to include the communities located in Fairfield County, Connecticut, in the Hartford-New Haven ADI for purposes of the Commission's mandatory signal carriage rules. This request is unopposed. 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. Under the Act, however, the Commission is also directed to consider changes in ADI areas. Section 614(h) of the 1992 Cable Act 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: where the presumption in favor of ADI carriage would result in cable subscribers losing access to local stations because they are outside the ADI in which a local cable system operates, the FCC may make an adjustment to include or exclude particular communities from a television station's market consistent with Congress' objective to ensure that television stations be carried in the areas which they serve and which form their economic market. * * * * * [This subsection] establishes certain criteria which the Commission shall consider in acting on requests to modify the geographic area in which stations have signal carriage rights. These factors are not intended to be exclusive, but may be used to demonstrate that a community is part of a particular station's 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. 7. Adding communities to a station's ADI generally entitles that station to insist on cable carriage in those communities. However, this right is subject to several conditions: 1) a cable system operator is generally required to devote no more than one-third of the system's activated channel capacity to compliance with the mandatory signal 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 any station whose signal substantially duplicates the signal of any other local signal carried, or the signal of more than one local station affiliated with a particular broadcast network. If, pursuant to these requirements, a system operator elects to carry the signal of only one such duplicating signal, the operator is obliged to carry the station from the ADI whose city of license is closest to the principal headend of the cable system. Accordingly, based on the specific circumstances involved, the addition of communities to a station's ADI may guarantee it cable carriage 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 used up its channel capacity mandated for broadcast signal carriage, or determined which of duplicating network affiliated stations are entitled to carriage priority). MODIFICATION ARGUMENTS 8. The communities in Fairfield County, Connecticut are considered to be part of the New York, New York area of dominant influence ("ADI"). WTNH-TV's Hartford-New Haven, Connecticut ADI includes every Connecticut county except for Fairfield, the reference point of the station's city of license is only 9.74 miles and its transmitter only 14.26 miles from the Fairfield County border, and virtually all of Fairfield County is located within WTNH-TV's Grade A contour. 9. In support of its petition, WTNH-TV states that it has been carried on all of the Fairfield County cable systems since those systems began operation. It contends that it places a strong signal over all of Fairfield County, covering most of the county with city grade service and the remaining portion with a Grade A signal. Further, WTNH-TV notes that its local newscasts routinely cover stories and sports events relative to Fairfield County. The station also provides coverage of Connecticut events not provided by the New York City stations which already have must-carry status on Fairfield County systems and several of its news personnel are active in Fairfield County affairs. According to WTNH- TV, Fairfield County viewers are dependent upon Connecticut stations such as WTNH-TV for their coverage of state-wide matters of interest. With respect to viewing patterns, WTNH-TV claims that it is now and has been the second most-watched television station both in cable and noncable homes in Fairfield County during time periods when non-network programming is shown, its newscasts are the highest-rated Connecticut newscasts among all county viewers, cable and noncable, and its morning news program is the highest-rated program in its time period, consistently garnering over one-third of all households in the county. In support, WTNH-TV submits 1991, 1992 and 1993 Nielsen Household Rating/Share data for Fairfield County for the five time periods programmed by WTNH-TV with locally-produced or syndicated programming. WTNH-TV notes that during the remaining time periods, which carry programming from the ABC Television Network, it also attracts a substantial number of Fairfield County viewers. DISCUSSION 10. WTNH-TV's petition is consistent with the applicable standards and will be granted. The communities in question are close geographically to WTNH-TV's community of license and transmitter, are well within its service area, and are logically part of its market area. WTNH-TV has shown Grade A coverage to all of the Fairfield communities. We have previously stated that this is sufficient to demonstrate coverage or other local service. WTNH-TV has demonstrated a long history of carriage on the cable systems serving the above communities. It has further provided information as to a lack of specific coverage of local events, sports or news in these communities by other stations presently eligible to assert mandatory carriage rights on cable systems serving these communities. And finally, the available evidence of cable and noncable household viewing patterns for Fairfield County indicates wide-spread viewership of WTNH-TV. ORDER 11. In view of the foregoing, we find that grant of WTNH-TV's petition is in the public interest. 12. Accordingly, it IS ORDERED, pursuant to 614(h) of the Communications Act of 1934, as amended, 47 U.S.C. 534, and 76.59 of the Commission's Rules, 47 C.F.R. 76.59, that the captioned petition for special relief filed May 24, 1993, by Cook Inlet Communications Corp. IS GRANTED. This change shall be effective in accordance with the following schedule: Cook shall notify the cable systems in question in writing of its carriage and channel position elections, see 47 C.F.R.  76.56, 76.57, 76.64(f), within thirty (30) days of the release date of this Memorandum Opinion and Order. The affected cable systems shall come into compliance with the applicable rules within 60 days of such notification. 13. This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau