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(WUHF), MO&O, DA-95-891//$ $/76.59 Modification of television markets/$ $/300.534 Carriage of Local Commercial Television Signals/$ ///newjob/// $///DA 95-891,4/24/95///$ Before the Federal Communications Commission Washington, D.C. 20554 DA-95-891 In re: ) ) Act III Broadcasting of Rochester, Inc. ) CSR-4035-A ) ) For Modification of Television Broadcast ) Station WUHF's ADI ) MEMORANDUM OPINION AND ORDER Adopted: April 20, 1995 Released: April 27, 1995 By the Cable Services Bureau: INTRODUCTION 1. Act III Broadcasting of Rochester, Inc. ["WUHF"], licensee of Television Broadcast Station WUHF (Fox, Channel 31), Rochester, New York, filed the captioned petition for special relief seeking to include the communities of Middlesex, Rushville, Benton, Indian Pines, Jerusalem, Keuka Park, Milo, Penn Yan, Barrington, Branchport, and Italy in Yates County, New York (collectively known as "the Communities") within the Rochester, New York "area of dominant influence" (ADI) for purposes of the cable television mandatory broadcast signal carriage rules. A-R Cable Services - NY, Inc. ["A-R Cable"], a cable operator serving the communities in question, filed comments on the petition for special relief. BACKGROUN D 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) 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 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). MARKET FACTS AND ARGUMENTS OF THE PARTIES 8. The communities at issue are located in Yates County, on the western edge of the Syracuse, New York ADI. WUHF is licensed to Rochester, New York and its ADI borders Yates County immediately to the north. Geographically, Yates County is bounded on the east by Seneca Lake, which cuts off direct access to Syracuse. 9. In support of its petition, WUHF states that it has been carried on the cable systems in the Communities since 1988 or 1989. WUHF states that the Penn Yan Cablevision system carries more Rochester television stations than Syracuse stations, and notes that the reference points for Rochester are closer to the Communities than reference points for Syracuse. WUHF asserts that it places a Grade B contour over the majority of the Communities and submits a map of its predicted Grade B coverage. WUHF argues that because Seneca Lake blocks access to jobs, shopping and schools in Syracuse, the topography creates a natural link between Rochester and the Communities and a natural barrier between the Communities and Syracuse. WUHF contends that forty percent of Yates residents commute to jobs outside the county, and more commuters commute to Rochester than to all Syracuse ADI counties combined; nearly three-fourths of those commuters commute to the Rochester ADI. WUHF contends that these geographic facts make the station's programming and advertising important to residents of Yates County. 10. In support of its claims that WUHF has a long history of both cable and noncable viewing in the Communities, the station submits Nielsen data to demonstrate its large viewing audience in Yates County. According to Nielsen, County/Coverage Study, County Summary: New York 1993, viewing of Rochester and Syracuse commercial television stations in Yates County is as follows: Total Share Total Average Weekly Cume Syracuse WIXT (ABC, Channel 9) 19 59 WSTM-TV (NBC, Channel 3) 10 55 WSYT (Fox, Channel 68) 5 35 WTVH (CBS, Channel 5) 14 47 Rochester WHEC-TV (NBC, Channel 10) 5 35 WOKR (ABC, Channel 13) 5 40 WROC (CBS, Channel 8) 11 48 WUHF (Fox, Channel 31) 3 24 Finally, WUHF asserts that discontinuance of its historic carriage in the Communities would disrupt traditional viewing patterns of the residents. 11. A-R Cable in its comments states that it operates four systems serving the Communities, and has historically carried WUHF as well as other Rochester stations, believing that its subscribers share a community of interest with the Rochester area. However, A-R Cable has been required to replace these stations with Syracuse stations because of Yates County's ADI designation. Given its limited channel capacity, A-R states that it cannot carry both Fox affiliates. Because of the limited channel capacity of A-R Cable's systems, the must carry rules place continued carriage of Rochester stations in jeopardy. A-R Cable does not oppose WUHF's petition, provided that a grant would not require A-R to carry more than one Fox affiliate. ANALYSIS AND DECISION 12. The inclusion of the Communities within the market area of WUHF for purposes of the cable television broadcast mandatory signal carriage rules is, considering all of the circumstances presented, consistent with the purposes specified in 614(h)(1)(C) of the 1992 Cable Act. WUHF is licensed to Rochester, New York, in the western portion of the state, to the north and west of several lengthy lakes. One of these lakes, Seneca Lake, creates a natural barrier between the Communities and Syracuse, the ADI to which the Communities are assigned, and a natural link between Rochester and the Communities. The Communities are closer to Rochester than to Syracuse, and WUHF---based on contour prediction calculations---is shown to place a Grade B contour over most of the communities in question. 13. With respect to the statutory factors, we find that WUHF has clearly satisfied the first factor---historic carriage. With respect to the second factor--- coverage and other local service to the cable community---WUHF places a predicted Grade B contour over only some of the Communities. Benton, Italy, Middlesex, and Rushville lie clearly within the contour, while Jerusalem and Penn Yan lie on its edge. However, the remaining communities in question lie just beyond WUHF's predicted Grade B contour, while Barrington lies just some 12 miles beyond. We have previously stated that Grade B coverage or close proximity is sufficient to demonstrate that a station satisfies this factor. While clearly certain of the Communities lie a few miles beyond WUHF's predicted Grade B contour, they are clearly more closely proximate to Rochester than to Syracuse. We find that these facts augur for inclusion of the Communities within WUHF's ADI. 14. WUHF's submitted data show that it and other Rochester licensees garner substantial viewing in Yates County. WUHF's Nielsen data show that the station's share in noncable homes in Yates County is 2 [in cable homes the station achieves a 4 share] and its average cume is 24. We believe that these viewing levels are sufficiently substantial to weigh our analysis of the fourth statutory factor in WUHF's favor. We recognize that this data is county-wide data, rather than community-specific data. We have stated, however, that absent evidence that such data are not fairly reflective of viewing in the actual communities in question, we shall accept such data as probative, although not conclusive, in cases of this type. With respect to the third factor, we believe that Congress did not intend this to be a bar to a station's ADI claim whenever other stations could also be shown to 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. Under such circumstances, a denial of carriage rights to the claiming station could deprive cable viewers of any broadcast signals that might provide programming geared to their communities. Because other stations do appear to serve the cable communities at issue, this enhancement factor would not appear applicable. 15. The portion of the Cable Act allowing for modification of ADIs "is intended to permit the modification of a station's market to reflect its individual situation." In the instant case, taking into account the totality of the circumstances involved, including in particular the topography of the area and the evidence submitted by WUHF demonstrating that Yates County is economically linked with the Rochester market, we conclude that given WUHF's "individual situation," inclusion of the communities in question is consistent with the value of localism and will better effectuate the purposes of the carriage rules. We note, too, that A-R Cable, the cable operator serving the Communities, has itself stated that its subscribers share a community of interest with the Rochester area, and that A-R Cable has long determined, even during the absence of mandatory signal carriage requirements, that the option to carry WUHF (as well as other Rochester licensees) is warranted. In view of the totality of the circumstances presented by both WUHF and by A-R Cable, we find that grant of WUHF's petition is justified. With respect to A-R Cable's concern that it not be required to carry more than one Fox affiliate, we reiterate that no cable operator is required to carry the signal of any station whose signal substantially duplicates the signal of any other local signal carried. In addition, cable operators are generally required to devote no more than one- third of their systems' activated channel capacity to compliance with the mandatory signal carriage obligations. See paragraph 7, supra. ORDER 16. In view of the foregoing, we find that grant of WUHF's petition is in the public interest. 17. Accordingly, IT IS ORDERED, pursuant to  614 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 petition for special relief filed August 2, 1993 by Act III Broadcasting of Rochester, Inc. IS GRANTED. This change shall be effective in accordance with the following schedule: Act III Broadcasting of Rochester, Inc. shall notify the cable systems in question in writing of its carriage and channel position elections, (76.56, 76.57, 76.64(f) of the Commission's Rules), 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. 17. This action is taken by the Cable Services Bureau pursuant to authority delegated by 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau