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X-#Xj\  P6G;XP# {/[?  $//MO&O, WISCTV, grant of ADI Modification Petition, DA 952369//$ $/76.7 Special relief and mustcarry complaint procedures/$ $/76.59 Modification of television markets/$  X-$/300.534 Carriage of local commercial television signals/$   I. A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)  X-#Xj\  P6G;XP#T T  Xv-2+Before the  X_-w  Federal Communications Commission  XH-Washington DC 20554  X1- DA 952369  X -TP#Xj\  P6G;XP#In re: ) x` `  hh)  X -TELEVISION WISCONSIN, INC.hh)@CSR3904A x` `  hh)  X -For Modification of Stationhh)  X -WISCTV's ADI hh)   MEMORANDUM OPINION AND ORDER TP  XK-xAdopted: November 20, 1995@hppReleased: December 4, 1995 By the Deputy Chief, Cable Services Bureau: %INTRODUCTION TP  X-x1.` ` Television Wisconsin, Inc. ["WISCTV"], licensee of television broadcast station WISCTV (CBS, channel 3), Madison, Wisconsin, has filed the captioned petition for special relief seeking to include the communities of Bagley, Bloomington, Blue River, Boscobel, Cassville, Cuba City, Dickeyville, Fennimore, Hazel Green, Lancaster, Montfort, Muscoda, Patch Grove, Platteville, Platteville Township, Potosi, Tennyson, and Woodman, Wisconsin, and surrounding unincorporated areas of Grant County, Wisconsin within WISCTV's Madison, Wisconsin "area of dominant influence" for purposes of the cable television mandatory broadcast signal carriage rules. WISCTV's petition is opposed by AFLAC Broadcast Partners ["KWWL"], licensee of television broadcast station KWWL (NBC, channel  X-7), Waterloo, Iowa,VY Xk!-#Xj\  P6G;XP#э KWWL's opposition is supported by latefiled statements from Cedar Rapids Television Company, licensee of station KCRGTV (ABC, channel 9), Cedar Rapids, Iowa, and from Dubuque TV Limited Partnership, licensee of station KDUBTV (ABC, channel 40), Dubuque, Iowa.V and WISCTV has replied. (.BACKGROUNDTP  X"-x2.` ` Pursuant to 4 of the Cable Television Consumer Protection and Competition""40*0*0*!"  X-Act of 1992 ("1992 Cable Act")|Y Xy-#Xj\  P6G;XP#э Pub. L. No. 102385, 106 Stat. 1460 (1992).| and implementing rules adopted by the Commission in its  X-  Report and Order in MM Docket 92259,r Xy-#Xj\  P6G;XP#э 8 FCC Rcd 2965, 29762977 (1993).r commercial television broadcast stations are entitled to assert mandatory carriage rights on cable systems located within the station's"0*0*0*" market. A station's market for this purpose is its "area of dominant influence" or ADI as  X-defined by the Arbitron audience research organization.a Xb-#Xj\  P6G;XP#э Section 614(h)(1)(C) of the 1992 Cable Act specifies that a 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  X-Arbitron's 19911992 Television Market Guide. 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  X-on which homemarket stations receive a preponderance of total viewing hours in the county.  X-For purposes of this calculation, both overtheair and cable television viewing are included. X/-#Xj\  P6G;XP#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. For  X-a more complete description of how counties are allocated, see Arbitron's Description of  X-Methodology.  X_-x3.` ` Under the Act, however, the Commission is also directed to consider changes in ADI areas. Section 4 provides that the Commission may: Xxwith 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: Xxthe Commission shall afford particular attention to the value of localism by taking into account such factors as  XxX` ` (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;x` XxX` ` (II) whether the television station provides coverage or other local service to such community; ` XxX` ` (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"|J 0*((" 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 ` XxX` ` (IV) evidence of viewing patterns in cable and noncable households within the areas served by the cable system or  XH-systems in such community.H X -#Xj\  P6G;XP#э Communications Act of 1934, as amended, 614(h)(1)(C)(ii), 47 U.S.C. 534(h)(l)(C)(ii).x`  X -x4.` ` The legislative history of this provision indicates that: Xxwhere 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.  T   * * * * *TP Xx` ` [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  X-market.b X-#Xj\  P6G;XP#э H.R. Rep. No. 628, 102d Cong., 2d Sess. 97 (1992).   X-x5.` ` The Commission provided guidance in its Report and Order in MM Docket 92259, supra, to aid decision making in these matters, as follows: XxFor example, the historical carriage of the station could be illustrated by the submission of documents listing the cable system's channel lineup (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  X-community or is located close to the community in terms of mileage. xxCoverage of news or other programming of interest to the community could be demonstrated by program logs or other descriptions of local program offerings. "!0*(( " 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  X_-concerning viewing in cable homes.z_ X-#Xj\  P6G;XP#э 8 FCC Rcd at 2977 (emphasis in original).z   X1-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  X -than applicable in common to all stations in the market.  y X-#Xj\  P6G;XP#э 8 FCC Rcd at 2977 n.139. Viewership data cited herein is county data, rather than  X-communityspecific data. However, absent evidence that such data is not fairly reflective of viewing in the actual communities in question, we accept such data as probative in cases of  X-this type. See, e.g., RKZ Television, Inc., 8 FCC Rcd 8008, 8010 (1993). The rules further provide, in accordance with the requirements of the Act, that a station not be deleted from carriage during  X -the pendency of an ADI change request.e  XV-#Xj\  P6G;XP#э 47 C.F.R. 76.59.e  X-x7.` ` 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 onethird 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 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 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 obliged to carry the affiliate from within the ADI whose city of  X-license is closest to the principal headend of the cable system.c  X"-#Xj\  P6G;XP#э 8 FCC Rcd at 2981.c 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; simply provide the system operator with an expanded list of mustcarry signals from which to choose, i.e., when it has used up its channel capacity mandated for broadcast signals carriage, or determined which of duplicating network affiliated stations are entitled to carriage priority." I 0*(("Ԍ# MARKET FACTS AND ARGUMENTS OF THE PARTIES TP  X-x8.` ` The communities in question are located within Grant County, Wisconsin, which is part of the Cedar RapidsWaterlooDubuque, Iowa ADI, abutting the Madison ADI to the west. Dubuque, Iowa lies just across the Mississippi River from Grant County. Cedar Rapids is located some 60 miles further to the southwest, and Waterloo is located some 85 miles further to the west. Madison, Wisconsin is located some 70 miles northeast of the center of Grant County.  X1-x9.` ` In support of its petition, WISCTV states that it has been carried on each of the cable systems serving the communities in question since the systems' inceptions. WISCTV also states that it places a Grade B signal over "most of Grant County . . . cover[ing] all of the communities in question." The station maintains that it provides daily live newscasts that address many issues of concern to residents of Grant County, and that it also broadcasts severe weather and school closing bulletins for Grant County. WISCTV notes that its reporters make daily beat calls to Grant County law enforcement agencies, and that the station has weather spotters in Boscobel, Muscoda, and Platteville that are contacted twice daily. WISCTV claims that it is the "only commercial television in Wisconsin with a full time state capital reporter," and that the station also provides regular coverage of the University of Wisconsin Regents. No Iowa station, asserts WISCTV provides comparable coverage. In addition, WISCTV submits its own promotional data and Arbitron data for all households in Grant County, which WISCTV contends demonstrates that the station has substantial viewing in the county.  X-x10.` ` In opposition to WISCTV, KWWL argues that it too has been carried on the cable systems in question since their inceptions, places a Grade B signal over most of Grant  X-County, and is significantly viewed in Grant County. a X#-#Xj\  P6G;XP#э For a network station to be deemed to be significantly viewed in a community or 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 at least 25 percent. 47 C.F.R. 76.5(i). Both KWWL and WISCTV, as well as KCRGTV, have been found to be significantly viewed in Grant County, as has television broadcast station KGAN (CBS, channel 2), Cedar Rapids,  X-Iowa. Reconsideration of the Cable Television Report and Order, 36 FCC 2d 326, 461 app. B (1972). KWWL also states that, contrary to WISCTV's assertion of full encompassment, the communities of Bagley, Bloomington, Cassville, Montfort, Patch Grove, and Woodman lie beyond WISCTV's Grade B contour. KWWL further states that its Dubuque news bureau covers Grant County on a regular basis, and that Grant County is significantly closer to Dubuque than to Madison. KWWL specifically cites news stories and date book announcements of events in Fennimore, Jamestown, Platteville, and Potosi that it covered in 1993. KWWL also notes that its weather coverage is more likely to give Grant County residents advance warning of severe weather, as KWWL's weather spotters in Dubuque are located west of Grant Countyfrom which" 0*((" direction weather patterns approachunlike Madison's location to the east. KWWL contends that 1993 Nielsen data demonstrate that it and the Cedar RapidsWaterlooDubuque ADI stations are more popular in Grant County than are WISCTV and Madison stations, and that affording WISCTV carriage rights in Grant County could disrupt existing viewing patterns.  X-x11.` ` In reply, WISCTV states for "clarification" that the communities of Bloomington, Cassville, Montfort, Patch Grove, and Woodman lie beyond the station's Grade B contour. WISCTV argues that KWWL's service to Grant County is clearly inferior to that of WISCTV, and that KWWL's submitted Nielsen data shows that Nielsen includes Grant County within WISCTV's primary coverage area. In fact, states WISCTV, this Nielsen data shows that WISCTV's viewing shares during its 5:00 pm and 10:00 pm newscasts (19 and 23, respectively) are higher than those for KWWL at the same time (17 and 14, respectively). WISCTV characterizes KWWL's claims of viewer disruption as speculative, and urges grant of the instant petition to protect localism in Grant County.  ANALYSIS AND DECISION TP  Xy-x12.` ` We shall grant WISCTV's petition. WISCTV clearly satisfies the first and fourth factors in each of the eighteen communities and surrounding unincorporated areas in question, that of historic carriage and viewership.. With regard to the second factor, that of coverage or other local service to the communities, WISCTV's Grade B contour encompasses all the communities in question other than Bagley, Bloomington, Cassville, Patch Grove, and Woodman. We have previously stated that Grade B coverage is sufficient to demonstrate that  X-a station satisfies this factor.  Xh-#Xj\  P6G;XP#э MM Docket 92259, 8 FCC Rcd at 2977. See also paragraph 5, supra. WISCTV also notes programming specific to certain of the communities it seeks to include within its ADI.  X-x13.` ` Turning to the third statutory factor, WISCTV concedes that other stations entitled to mandatory carriage in the communities in question serve the communities, but questions the quality of this service. Nevertheless, we do not believe that Congress intended the third 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. 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. In this case, as WISCTV concedes that other stations entitled to carriage serve the communities in question, this enhancement factor would not appear to be applicable. We further note, with respect to KWWL's claim of subscriber disruption, that this claim is speculative and unsubstantiated.  X#-x14.` ` Finally, with respect to the fourth factor, it has been established that WISCTV"#{ 0*((e""  X-garners substantial viewership in Grant County.s Xy-#Xj\  P6G;XP#э See footnote 12, supra.s Arbitron data show that WISCTV achieves  X-a total share in noncable homes in Grant County of 12, and a net weekly circulation of 41.{ X-#Xj\  P6G;XP#э This data is from Arbitron, Television County Coverage: Wisconsin (CableControlled Counties), 1993. Though this does not exceed the viewership levels of most of the Cedar RapidsWaterlooDubuque ADI commercial stations KWWL achieves a 25 total share and a 66 net weekly circulation; KCRGTV achieves a 16 total share and a 61 net weekly circulation; KDUBTV achieves an 8 total share and a 40 net weekly circulation; and KGAN achieves a 15 total share and a 51 net weekly circulation it is substantial and comparable. In cable homes, however, this situation is reversed: WISCTV's viewership exceeds that of each Cedar RapidsWaterlooDubuque ADI licensee. WISCTV achieves an 18 total share and a 74 net weekly circulation, while KWWL achieves a 9 total share and a 64 net weekly circulation, and the other stations achieve even lower ratings. Taken as a whole, WISCTV's viewership in Grant County satisfies the fourth statutory factor.  X -x15.` ` Accordingly, for purposes of determining mandatory signal carriage obligations, we shall consider the communities of Bagley, Bloomington, Blue River, Boscobel, Cassville, Cuba City, Dickeyville, Fennimore, Hazel Green, Lancaster, Montfort, Muscoda, Patch Grove, Platteville, Platteville Township, Potosi, Tennyson, and Woodman, Wisconsin, and surrounding unincorporated areas of Grant County, Wisconsin, to be part of the Madison, Wisconsin ADI with respect to WISCTV, as well as within the Cedar RapidsWaterlooDubuque, Iowa ADI. In making this determination we have taken into consideration the fact that five of the relevant communities lie outside of WISCTV's Grade B contour. Nevertheless, based upon the totality of circumstance present here we believe it appropriate to grant the petition with respect to all the communities at issue. This determination is subject to all generally applicable limitations on signal carriage rights, including copyright liability, signal quality, channel capacity, and program duplication. See paragraph 7, supra. ?ORDER TP  X|-x16.` ` 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 captioned petition for special relief filed June 11, 1993 by Television "N0*((" Wisconsin, Inc. IS GRANTED. This change shall be effective in accordance with the following schedule: WISCTV shall notify the affected cable systems 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 this Memorandum Opinion and Order. The affected cable systems shall come into compliance with the applicable rules within 60 days of the above notice.  X_-x17.` ` This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules. x` `  hhFEDERAL COMMUNICATIONS COMMISSION  x` `  hhWilliam H. Johnson x` `  hhDeputy Chief, Cable Services Bureau