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Doc InitInitialize Document Stylez   0*0*0*  I. A. 1. a.(1)(a) i) a) I. 1. A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8:><q*"xxxxWWxxxWWkkxxxFx6X@`7X@?8wC;,=9Xw PE37XPD@7zC;,BXz_ pi7XAV"G($,hG PE37hP6uC;,~Xu&_ x7XXIndented Bullet List*M0 YXX` ` (#` Stylez2Xf MAT",tB^ f ^;C`ddCCCdCCCCddddddddddCCdxxxsCYoxxdoxxooCCCddCddYdY8dd88Y8ddddLL8dYYYLYdYd4dddddCddddddddd8xdxdxdxdxdYxYxYxYxYC8C8C8C8dddddddddoYxddddoYdxdxdxdxdXXddxxXxdxdxXdddddddD8ddddCdddddp8pHodp8p8dxddddxLxLxddLdLdLddpHp8odddddddodpLpLpLdoddddododxCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCd]]ddddddFddddFCCddd88ddzzdddkddCddF"ddd9dCCzCdzdoddCdYds]zUvdYYCCCCzzzozoYzNoYdYC8YooYdYzzdzddoYoYzzozzzzzCdoozYzzzzCCddddzdddooozCsdYC\   pxtll\tll@\@\`L20Y X-   I. A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)#Xw PE37 DXP#$// MO&O Grant of market modification to KOLN, Lincoln, NE., DA95640//$ $/ 76.59 Modification of television markets./$ $/ 300.614 Carriage of Local Commercial Television Signals./$ $///DA 95640 3/30/95///$ ~A   ~A ///newjob/// ~A   X_-#Xw PE37 DXP#*2 Before the V FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 x` `  hh@hpp  xxDA95640  X - In re:x` `  hh@) x` `  hh@) x` `  hh@)  X-Busse Broadcasting Corporationhh@) ppCSR3950A  Xy-Lincoln, Nebraska hh@) x` `  hh@) x` `  hh@)  X4-For Modification of Stationshh@)  X-KOLN's and KGIN's ADIhh@)  X- MEMORANDUM OPINION AND ORDERă  X-x` ` Adopted: March 28,1995@hppReleased:April 3, 1995 By the Cable Services Bureau:     X7-%INTRODUCTION  X - x1. 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 LincolnHastingsKearney, Nebraska area " 0*(("  Y-of dominant influence ("ADI") to which both stations are currently assigned.8vu_ Yy-#Xw PE37=9XP##Xw PE37=9XP#э The communities are as follows: Brunswick, Clearwater, Elgin, Neligh, Oakdale, and Orchard (in Antelope County); Bellwood, Brainard, David City, Dwight, Rising City, and Ulysses (in Butler County); Cook, Sterling, and Tecumseh (in Johnson County); Creston, Columbus, Duncan, Humphrey, Lindsey, and Monroe (in Platte County); and (in Seward County), Beaver Crossing, Bee, Garland, Goehner, Milford, Pleasant Dale, Seward, Staplehurst, and Utica. 8 Busse's petition is unopposed.  Y-*$BACKGROUNDă x2. Pursuant to 4 of the Cable Television Consumer Protection and Competition Act  Y_-of 1992 ["1992 Cable Act"]|_u_ Y-#Xw PE37=9XP#э Pub. L. No. 102385, 106 Stat. 1460 (1992).| and implementing rules adopted by the Commission in its  YH-Report and Order in MM Docket 92259,rHu_ Y-#Xw PE37=9XP#э 8 FCC Rcd 2965, 29762977 (1993).r 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  Y -defined by the Arbitron audience research organization.a h u_ 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.ı 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 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. u_ 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  W$-Methodology. x3. Under the Act, however, the Commission is also directed to consider changes in ADI area. Section 614(h) provides that the Commission may:"d0*((+"Ԍxwith respect to a particular television broadcast station, include additional xcommunities within its television market or exclude communities from such xstation's television market to better effectuate the purposes of this section. In considering such requests, the Act provides that: xthe Commission shall afford particular attention to the value of localism by xtaking into account such factors as x(I) whether the station, or other stations located in the same area, have xbeen historically carried on the cable system or systems within such xcommunity; x(II) whether the television station provides coverage or other local service xto such community; x(III) whether any other television station that is eligible to be carried by a cable xsystem in such community in fulfillment of the requirements of this section xprovides news coverage of issues of concern to such community or provides xcarriage or coverage of sporting and other events of interest to the community; xand x x(IV) evidence of viewing patterns in cable and noncable households within the  Y-xareas served by the cable system or systems in such community.u_ Yh-#Xw PE37=9XP#э 47 U.S.C. 534(h)(1)(C)(ii). As Congress recognized, "[t]hese factors are not intended to be exclusive . . . ." H.R. Rep. 102628, 102d Cong., 2d Sess. 97 (1992). x4. The legislative history of this provision indicates that: XxThe 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  Y!-be deleted from the station's television market.!bu_ Y&-#Xw PE37=9XP#э H.R. Rep. 102628, 102d Cong., 2d Sess. 9798 (1992).  x""0*((#"Ԍ Y-x5. The Commission provided guidance in MM Docket 92259, supra, to aid decision making in these matters, as follows: xFor example, the historical carriage of the station could be illustrated by the  Y-xsubmission of documents listing the cable system's channel lineup (e.g., rate xcards) for a period of years. To show that the station provides coverage or xother local service to the cable community (factor 2), parties may demonstrate xthat the station places a Grade B coverage contour over the cable community xor is located close to the community in terms of mileage. Coverage of news or xother programming of interest to the community could be demonstrated by xprogram logs or other descriptions of local program offerings. The final  Y -xfactor concerns viewing patterns in the cable community in cable and noncable xhomes. Audience data clearly provide appropriate evidence about this factor. xIn this regard, we note that surveys such as those used to demonstrate xsignificantly viewed status could be useful. However, since this factor xrequires us to evaluate viewing on a community basis for cable and noncable xhomes, and significantly viewed surveys typically measure viewing only in xnoncable households, such surveys may need to be supplemented with  Yh-xadditional data concerning viewing in cable homes.{hu_ Y-#Xw PE37=9XP#э MM Docket 92259, 8 FCC Rcd at 2977.{  Y:-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. {u_ Y!-#Xw PE37=9XP#э MM Docket 92259, 8 FCC Rcd at 2977, n. 6139. The rules further provide, in accordance with the requirements of the Act, that a station not be deleted from carriage  Y-during the pendency of an ADI change request.e .u_ Y-#Xw PE37=9XP#э 47 C.F.R. 76.59.e  Y- MARKET FACTS AND BUSSE'S ARGUMENTSă x7. The five counties specified by Busse are all located on the eastern border of the LincolnHastingsKearney 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"! 0*(("" 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. x8. 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  Y -from these areas, in some cases as much as 75 miles. v u_ YN-#Xw PE37=9XP#э To support its claim, Busse submits several lists of news items on which it reported between April 1992 and April 1993 concerning events in the five counties where the listed communities are located. For Antelope County, it broadcast 16 items; it broadcast 24 items about events in Butler County; for Johnson County, it aired 11 items; Busse broadcast 54 items about events in Platte County; and it aired 32 items concerning events in Seward County. 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  Yb-five counties at issue when it initially released its list of such signals in 1972, abu_ Y-#Xw PE37=9XP#э For a network station to be deemed significantly viewed in a community or in a county, it must achieve in noncable homes a share of viewing hours of at least 3 percent (total week hours) and a net weekly circulation of a least 25 percent. 47 C.F.R. Section  Y-76.5(i). According to Arbitron's 1993 report Television County Coverage: Nebraska, KOLN currently has a 50 share and a 90 net weekly circulation offair in Platte County, and a 43 share and a 86 net weekly circulation offair in Seward County; Arbitron did not report any offair viewing for the other three counties. and Busse submits countywide 1992 Arbitron data to demonstrate that it continues to enjoy widespread  Y4-support,d v4/u_ Y"-#Xw PE37=9XP#э Recognizing that the Commission previously requested communityspecific data, rather than countywide data, Busse explains that, in this instance, countywide data should be statistically reliable, because it ". . . is seeking to add all of the communities in each county. . . ." At the same time, Busse notes that even though the countywide data could be broken down by zip code (thus approximating community data), the resulting number of diaries would be so small that any data based on it would not be statistically reliable.d 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." "m 0*(("Ԍ Y-ԙANALYSIS AND DECISIONă x9. 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 LincolnHastingsKearney 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  Y -broadcast stations.j u_ Ye -#Xw PE37=9XP#э The eight other Nebraska television stations are as follow: KCAN (ABC, Ch. 8), Albion; KHASTV (NBC, Ch. 5), Hastings; KHGITV (ABC, Ch. 13), Kearney; KSNBTV (ABC, Ch. 4), Superior; and from Omaha, KETV (ABC, Ch. 7); KMTV (CBS, Ch. 3); KPTM (Ind., Ch. 42); and WOWT (NBC, Ch. 6).j 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  Y-Antelope, the remaining county.-4u_ Yu-#Xw PE37=9XP#э Because we believe that ADI's should reflect the existing economic marketplace in as accurate and as complete a way as possible, we will add the communities requested in Antelope County both to KOLN's and to KGIN's ADI. - Although WNEMTV 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  Y-was intended to enhance a station's claim where it could be shown that other stations do not serve the communities at issue. x 10. Finally with respect to the viewership issue, the most recent data reported by  Y-Arbitron for 1993 in its study Television County Coverage: Nebraska (Standard/Fringe)  Y-confirms that KOLN has by far the largest market share in each of the five counties,u_ Y"-#Xw PE37=9XP#э In Antelope, KOLN's total share of county viewing is 36%; in Butler, it's 39%; in Johnson, it's 35%; in Platte, it's 32%; and in Seward, it's 35%. By comparison, the station with the closest total share of county viewing in Antelope is KCAN with 15%; in Butler, it's KETV with 12%; in Johnson, it's KETV with 17%; in Platte, it's KETV with 10%; and in  Y%-Seward it's KETV with 15%.#Xw PE37=9XP# in" 0*((~"  Y-addition to the largest share of news viewing, both early and late.u_ Yy-#Xw PE37=9XP#э We recognize that this data is countywide rather than communityspecific. However, we have previously stated that we will accept such data as probative, although not conclusive, in cases of this type, absent evidence that such data are not fairly reflective of  Y4-viewing in the actual communities in question. See, RKZ Television, Inc., 8 FCC Rcd 8008, 8010 (1993). 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  Y-essentially the same programming._u_ Y -#Xw PE37=9XP#э On p. ii of the Introduction to its report, Arbitron provides the following explanation: "S1 Satellites are satellite stations which, subject to the circumstances noted below, simultaneously rebroadcast 100 percent of the parent station's programming. For purposes of this policy, the S1 Satellite must rebroadcast programming (exclusive of commercials) of the parent station in its entirety. * * * * Viewing hour estimates are always reported in combination with the parent station. A'+' next to the parent's call letters indicates the combined viewing hour estimates of the parent and the S1 Satellite." 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  Y_-mandatory carriage rules KOLN and KGIN carry duplicative programming. See Section 76.56(b)(5) of the Commission's Rules. 1|Bx 11.1  Y -=ORDERă x 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 (CSR3950A), filed July 7, 1993, by Busse Broadcasting Corporation IS GRANTED. x 12. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's Rules. 1|Bx 13.1  Y- x` `  hhFEDERAL COMMUNICATIONS COMMISSION |Bx  |B  x` `  hh William H. Johnson  Yg-x` `  hh Deputy Chief, Cable Services Bureauxx