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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** $//Grant of WPDE-TV's ADI Modification Petition, DA-95-803//$ $/76.7 Special relief and must-carry complaint procedures/$ $/76.59 Modification of television markets/$ $/300.534 Carriage of local commercial television signals/$ ///newjob/// $///DA 95-803,4/24/95///$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA-95-803 In re Petition of ) ) Diversified Communications ) CSR-4015-A Florence/Myrtle Beach, South Carolina) ) For Modification of Station ) WPDE-TV's ADI ) MEMORANDUM OPINION AND ORDER Adopted: April 11, 1995 Released: April 25, 1995 By the Chief, Cable Services Bureau: INTRODUCTION 1. Diversified Communications ("WPDE-TV"), licensee of Station WPDE-TV (ABC, Channel 15), Florence/Myrtle Beach, South Carolina, has filed the above-captioned petition for special relief requesting the Commission to modify its television market for purposes of establishing must-carry rights to include the Robeson County, North Carolina communities of Lumberton, Rowland, Red Springs, Lumber Bridge, St. Pauls, Fairmont and Pembroke within the Florence/Myrtle Beach, South Carolina "area of dominant influence" ("ADI"). The petition is unopposed. BACKGROUND 2. Pursuant to Section 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 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) 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: 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 the following guidance in its Report and Order, MM Docket 92-259, supra, to aid decision making in these matters: For example, the historical carriage of the stations 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 requested changes should be considered on a community-by-community basis, rather than 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. 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 its 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 an 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 signals 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 a single affiliate of a broadcast network, it is obligated to carry the affiliate from within 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 simply provide the system operator with an expanded list of must-carry signals from which to choose, i.e., when it has used up the channel capacity mandated for broadcast signal carriage, or determined which of duplicating stations are entitled to carriage priority. MARKET FACTS AND ARGUMENTS OF THE PARTIES 8. The communities at issue here are all located in Robeson County, North Carolina which is located within the Wilmington, North Carolina ADI. The Florence-Myrtle Beach ADI consists of six counties and the communities here in question are located immediately to the north of the ADI. 9. In support of its petition, WPDE-TV states that Robeson County cable systems have historically carried its signal. Specifically, WPDE-TV states that its signal is carried on the two cable systems serving the Robeson County communities of Lumberton and Rowland. WPDE-TV argues that because the communities at issue here are not in the Florence/Myrtle Beach ADI, it does not enjoy must carry status on the respective cable systems, and is, therefore, subject to having its signal deleted. Apparently, in 1981, WPDE-TV's signal was dropped from the cable system serving Lumberton and was only reinstated after the City Counsel, citing the quality local service provided by WPDE-TV to Lumberton and Robeson County, formally requested that WPDE again be carried. WPDE-TV has been continuously carried by the cable companies serving Lumberton since 1990 and in Rowland since 1985. Furthermore, WPDE-TV argues that the continuing absence of its signal from cable systems serving Red Springs, Lumber Bridge, St. Pauls, Fairmont and Pembroke only serves to deprive residents of desired local programming. 10. In order to show that it provides coverage and other local service to Robeson County, WPDE-TV states that its Grade A contour encompasses the vast majority of Robeson County while its Grade B contour engulfs the remaining area of the county. Moreover, WPDE-TV states that its Grade A contour covers all of the communities that it requests to be included in its television market. WPDE-TV also states that no commercial station in the Wilmington, North Carolina ADI, in which the communities at issue are located, provides a more encompassing Grade A contour over the county and, therefore, this demonstrates the station's ability to provide superior quality coverage to the communities in question. 11. WPDE-TV also maintains that it provides extensive news and sports coverage in Robeson County. WPDE-TV states that it reports virtually every night from Lumberton, the largest community in the county. Moreover, WPDE-TV notes that it staffs its Lumberton News Center with a full time reporter who reports only on Robeson County news, sports and other events. According to WPDE-TV, the CBS affiliate in Florence, WBTW-TV, also has a news bureau in Lumberton while only one station in the Wilmington ADI has a news bureau in the community. WPDE-TV contends that this further demonstrates that television stations in Florence consider Robeson County as part of their television market. 12. With regard to evidence of viewing patterns in cable and noncable households, WPDE-TV argues that Robeson County viewers clearly prefer watching television stations broadcasting from nearby Florence over stations broadcasting from the more distant Wilmington area. In support, WPDE-TV submits a "Robeson County share of viewing" exhibit which it says demonstrates that the most recently available Arbitron research shows that Florence stations won a 31 share versus Wilmington's 28.2 share for the month of February 1993. Moreover, WPDE-TV states that these ratings show that twice as many Robeson County viewers prefer watching the Florence ABC affiliate - WPDE-TV - (6.2 share) over the Wilmington ABC affiliate - WWAY-TV-(2.8 share). In another exhibit, WPDE-TV tries to show in a survey limited to cable households that when residents have a choice, they prefer watching Florence television stations. WPDE-TV states that Arbitron research reveals that the two affiliates in Florence (WPDE-TV, an ABC affiliate and WBTW- TV, a CBS affiliate) have a nine share total. WPDE-TV submits that while the total share for Wilmington's three network affiliates is higher, the number drops to six if the NBC affiliate is not counted. According to WPDE-TV, while the viewership for WECT-TV, the NBC affiliate in Wilmington, is high, this number is not significant because Florence does not have an NBC affiliate, and is therefore unable to compete with WECT-TV for Robeson County viewers who may prefer NBC programming. With regard to noncable households, WPDE-TV advances the same argument. It states that the two network affiliates in Florence reap an overall share of 39 among noncable households in Robeson County. While the three Wilmington affiliates garner a 41 share, WPDE-TV argues that without the NBC affiliate the overall share would drop to five. ANALYSIS AND DECISION 13. WPDE-TV's unopposed petition is consistent with the applicable standards and will be granted. We note at the outset that each of the applicable standards do not apply to each of the communities equally. However, considering the totality of the circumstances in this case, we believe that the aforementioned North Carolina communities should be considered as part of the Florence/Myrtle Beach ADI. WPDE-TV has shown Grade A coverage to the vast majority of Robeson County, while its Grade B covers the remaining communities. We have previously stated that this is sufficient to demonstrate coverage or other local service. WPDE-TV has also demonstrated a long history of carriage on the cable systems serving the communities of Lumberton and Rowland. While this carriage has not been demonstrated for the remaining communities, we believe that WPDE-TV's signal strength, general commitment to local service in Robeson County, and sizable off-air viewership, as noted below, warrant that these communities be included in the Florence/Myrtle Beach ADI. 14. WPDE-TV has not 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. However, WPDE-TV does state that it staffs a News Center in Lumberton with a full time reporter who reports on local events, as does another Florence affiliate, while only one station in the Wilmington ADI has a news bureau in the community. With regard to this criterion, however, we do not believe that Congress intended it to act as a bar to a station's ADI claim if it were to be shown that other stations serve the communities at issue. Rather, we believe 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. And finally, WPDE-TV has presented evidence of widespread cable and noncable household viewing patterns for Robeson County. In this regard, we note that WPDE-TV captures over double the share of the Wilmington ADI ABC network affiliate. ORDER 15. In view of the foregoing, we find that grant of WPDE-TV's petition is in the public interest. 16. Accordingly, IT IS ORDERED, pursuant to 614(h)(1)(c) 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 July 30, 1993 by Diversified Communications IS GRANTED. 17. IT IS FURTHER ORDERED, That this change shall be effective in accordance with the following schedule: WPDE-TV shall notify the cable systems in question in writing of its carriage and channel position elections (76.56, 76.57 and 76.64(f) of the Commission's Rules) within 30 days of the release date of the Memorandum Opinion and Order. The affected cable systems shall come into compliance with the applicable rules within 60 days of such notification. 18. 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