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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** 1.$// MO&O Grant of market modification to KOLN, Lincoln, NE., DA-95-640//$ $/ 76.59 Modification of television markets./$ $/ 300.614 Carriage of Local Commercial Television Signals./$ $///DA 95-640 3/30/95///$ ///newjob/// Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA-95-640 In re: ) ) ) Busse Broadcasting Corporation ) CSR-3950-A Lincoln, Nebraska ) ) ) For Modification of Stations ) KOLN's and KGIN's ADI ) MEMORANDUM OPINION AND ORDER Adopted: March 28,1995 Released:April 3, 1995 By the Cable Services Bureau: INTRODUCTION 1. In the captioned proceeding, Busse Broadcasting Corporation ("Busse"), licensee of Television Broadcast Station KOLN (CBS, Channel 10), Lincoln, Nebraska, and of its satellite, KGIN (CBS, Channel 11), Grand Island, Nebraska, has requested the Commission to add certain Nebraska cable communities to the Lincoln-Hastings-Kearney, Nebraska area of dominant influence ("ADI") to which both stations are currently assigned. Busse's petition 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 area. Section 614(h) 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. MARKET FACTS AND BUSSE'S ARGUMENTS 7. The five counties specified by Busse are all located on the eastern border of the Lincoln-Hastings-Kearney ADI. At present, the Counties of Butler, Johnson, Platte, and Seward are all assigned to the Omaha, Nebraska ADI, while Antelope County is part of the ADI for Sioux City, Iowa. According to Busse, all fourteen specified cable communities in Butler and Seward Counties are located within KOLN's Grade A contour, and the nine specified cable communities in Johnson and Platte Counties are all within KOLN's Grade B contour. Busse adds that the six specified cable communities in Antelope County are located within the service area of its 1,000 watt television translator station at Neligh (K28AP), and that Lincoln, KOLN's city of license, is actually located closer to the listed communities than is the metro area of their designated ADI's, Omaha and Sioux City. 8. According to Busse, either KOLN or KGIN is presently carried by the cable system serving every cable community it has listed, and Busse notes that 23 of the 30 listed cable communities have carried either KOLN or KGIN since 1992. Since Lincoln is the state capital, KOLN adds that it has immediate access to the state government news that it reports daily, as well as the news it broadcasts concerning agriculture, including weather and farm market reports. In addition, since there are no major league professional teams in the area, Busse's emphasis on coverage of the University of Nebraska teams and of area high school sports is essential. Busse adds that it is unlikely that the other stations assigned either to the Omaha or to the Sioux City ADI have provided the quality or the depth of coverage to the listed communities that it has through the years, simply because they are located so far from these areas, in some cases as much as 75 miles. Since KOLN is the only commercial station licensed to Lincoln, it is able to provide daily coverage of the Nebraska state government, thus promoting the diversity of views which was recognized in Section 2(a)(6) of the 1992 Cable Act as having "substantial governmental and First Amendment interest". Busse notes that the Commission recognized KOLN as significantly viewed in each of the five counties at issue when it initially released its list of such signals in 1972, and Busse submits county-wide 1992 Arbitron data to demonstrate that it continues to enjoy wide-spread support, noting that in each of the five contested counties, "KOLN has the largest market share and the largest share of news viewing by a wide margin." ANALYSIS AND DECISION 9. As described more fully below, KOLN has shown that the communities at issue are part of its economic marketplace. With regard to long term carriage, KOLN has shown that cable systems serving 23 of the 30 communities at issue have carried KOLN or its satellite station KGIN since 1992. With regard to the remaining three communities, KOLN notes that all are currently carrying it. While we recognize that KOLN has not shown a history of carriage in these three communities, we believe nevertheless that the other factors taken as a whole warrant the relief requested. In addition, no party has filed an objection to KOLN's requested modification of the Lincoln-Hastings-Kearney ADI as it relates either to KOLN or to KGIN, even though the communities listed in the five counties in question are at least partially located within the Grade B contour of eight other commercial television broadcast stations. Busse has also demonstrated how its programming serves the needs and interests of many of these communities. In addition, each of the communities listed in four of the five counties is located close to KOLN's city of license and within either its Grade A or Grade B contour, and Busse operates a television broadcast translator station serving Antelope, the remaining county. Although WNEM-TV has not fully addressed the third statutory factor -- whether other stations entitled to carriage provide news and other programming of concern or interest to the communities in question -- 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 enhance a station's claim where it could be shown that other stations do not serve the communities at issue. 10. Finally with respect to the viewership issue, the most recent data reported by Arbitron for 1993 in its study Television County Coverage: Nebraska (Standard/Fringe) confirms that KOLN has by far the largest market share in each of the five counties, in addition to the largest share of news viewing, both early and late. This data does not separate viewing attributable to KOLN from that attributable to KGIN, since the latter station is a 100% satellite of the former station, and both stations broadcast essentially the same programming. Therefore, although we will add the communities requested in Butler, Johnson, Platte, Seward, and Antelope Counties to the ADI for each station, we note that for purposes of mandatory signal carriage, cable operators will be required to carry only one of the two stations because as defined by the Commission's mandatory carriage rules KOLN and KGIN carry duplicative programming. See Section 76.56(b)(5) of the Commission's Rules. ORDER 11. Accordingly, IT IS ORDERED, pursuant to Section 614(h)(1)(C) of the Communications Act of 1934, as amended, (47 U.S.C. 534(h)(1)(C)), That the petition for special relief (CSR-3950-A), filed July 7, 1993, by Busse Broadcasting Corporation IS GRANTED. 12. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau