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File how2ftp (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** $//Partial grant of WCYB-TV's ADI petition, DA 95-2370//$ $/76.7 Special relief and must-carry complaint procedures/$ $/76.59 Modification of television markets/$ $/300.534 Carriage of local commercial television signals/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 DA 95-2370 In re: ) ) Appalachian Broadcasting Corp. ) CSR-3947-A Bristol, Virginia ) ) For Modification of the Bristol, Virginia-- ) Kingsport-Johnson City, North Carolina ) and Charlotte, North Carolina ADIs ) MEMORANDUM OPINION AND ORDER Adopted: November 20, 1995 Released: December 1, 1995 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. In the captioned proceeding, Appalachian Broadcasting Corporation ["WCYB- TV"], licensee of television broadcast station WCYB-TV (NBC, channel 5), Bristol, Virginia, has requested the Commission to modify the Bristol, Virginia--Kingsport-Johnson City, North Carolina Area of Dominant Influence (ADI), in which WCYB-TV is located, to include the communities of Zionville, Sugar Grove, and Vilas, North Carolina, (served by SRW Cablevision), and the communities of Foscoe, Boone, Blowing Rock, Deep Gap, Beech Mountain, and unincorporated portions of Watauga County, North Carolina, (served by High Country Cable TV). All of these communities are located within Watauga County, North Carolina. At the same time, WCYB-TV requests that these same communities be excluded from the market of station WCNC-TV (NBC, channel 36), Charlotte, North Carolina, which is located within the Charlotte, North Carolina ADI. An opposition to this request was filed on behalf of WSOC Television, Inc. ["WSOC-TV"], licensee of station WSOC-TV (ABC, channel 9), Charlotte, North Carolina, to which WCYB-TV has replied. BACKGRO UND 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, commercial television broadcast stations are 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 4 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: 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 its Report and Order 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 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 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 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; simply provide the system operator with an expanded list of must-carry 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. MODIFICATION ARGUMENTS 8. The communities herein and Station WCNC-TV are located in the Charlotte, North Carolina ADI. WCYB-TV is located in the Bristol, Virginia--Kingsport-Johnson City, North Carolina ADI. WCYB-TV is located approximately thirty miles from the communities in question and its predicted Grade A contour encompasses them. 9. In support, WCYB-TV argues that requested waiver should be granted due to the fact that the station has a long history of carriage in the communities in question, its Grade A contour encompasses all of the communities, the station is considered to be significantly viewed in Watauga County, and it has traditionally provided news and other local coverage for the area. Alternatively, with regard to the exclusion of these same communities from WCNC-TV's ADI. WCYB-TV avers that WCNC-TV's Grade A contour does not encompass any of the communities, it is not considered to be significantly viewed, it does not provide any local programming and it is carried on only one small system in Watauga County whose community (Meat Camp, North Carolina), is not among those listed in the instant petition. 10. In opposition, WSOC-TV argues that grant of WCYB-TV's request could adversely affect the cable carriage of WSOC-TV in its home ADI. It maintains that WCYB- TV fails to justify the four factors set forth in the rules and should therefore not be granted mandatory carriage rights outside it own market. First, WSOC-TV states that WCYB-TV seeks the inclusion of a whole county instead of individual communities as required by the rules and it mistakenly relies on county-wide instead of community-specific data. Second, less than half of the programming list supplied by WCYB-TV is relevant to the communities herein and this programming is spread over 36 months. This provides an average of local programming of less than 2 programs per month. Third, WSOC-TV avers that WCYB-TV's claim that WCNC-TV does not provide significant local coverage to the communities herein is not supported by the facts. Moreover, WCYB-TV completely ignores the fact that other local market stations, such as WSOC-TV, may be providing such coverage. Fourth, WSOC-TV states that according to Arbitron the viewing statistics for Watauga County from 1990 through 1992 not only vary widely from year to year, but the Charlotte, Greensboro and West Salem, North Carolina television stations lead in viewership over Bristol, Virginia stations. Finally, WSOC-TV states that many of the Charlotte stations, including WSOC-TV, have been historically carried on the Watauga County cable systems. It contends that grant of WCYB- TV's request could endanger its continued carriage and cause disruption for cable subscribers. 11. In its reply, WCYB-TV states that it is unclear as to how grant of its current request, which involves only itself and WCNC-TV, would impact on WSOC-TV. The station points out that WCNC-TV, the most affected party, has not objected to the request. In any event, it maintains that since WCYB-TV is presently carried in the communities and WCNC- TV, a market station, is not, a grant would merely retain the status quo. Further, WCYB-TV states that it has asked only for the addition of specific cable communities, not whole counties as contended by WSOC-TV. Moreover, it argues that WSOC-TV has provided no rationale for rejecting county-wide survey data in this instance. DISCUSSI ON 12. We reject the arguments raised by WSOC-TV in its opposition, and find that in any event grant of WCYB-TV's request will apparently not jeopardize WSOC-TV's carriage in the subject communities. From the evidence, both stations are already carried on the cable systems in Watauga County and are affiliated with different networks. It is noteworthy that WCNC-TV, the station most affected, has not commented on this matter. With regard to the issue of using county-wide survey data, we have stated in the past that, absent evidence that such data are not fairly reflective of viewing in the actual communities in question, such data are acceptable as probative, although not conclusive, in cases of this type. We find that WCYB-TV has demonstrated in its petition that the Watauga County communities in question are logically part of its ADI market under the factors specified in the 1992 Cable Act and its petition will accordingly be granted to that extent. 13. With regard to the first criterion, WCYB-TV has provided evidence of its carriage in the subject communities and a review of Commission records and industry publications, however, does indicate that WCYB-TV has been carried in the subject communities since at least 1989. Second, WCYB-TV has shown Grade A coverage over all of Watauga County, which includes all of the communities that it requests be included within the Bristol ADI. We have previously stated that this is sufficient to satisfy the second criterion demonstrating coverage or other local service. We note, too, the proximity of these communities to Bristol, Virginia, WCYB-TV's city of license. Zionville and a majority of the communities are within thirty miles of Bristol. WCYB-TV's showing indicates as well that at least a third of its news and sports programming is applicable to Watauga County. As to the third factor, while WCYB-TV has not fully addressed the issue of whether other stations entitled to mandatory carriage in these communities already provide local news and programming, we do not believe that Congress intended this factor to operate as a bar to a station's ADI claim whenever other stations also could be shown to serve the communities as issue. Rather, we believe 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 which might provide programming geared to their communities. In this case, because other stations do appear to serve the communities named by WCYB-TV, this enhancement factor does not appear to be applicable. With regard to the fourth factor, the viewing pattern data in cable and noncable households also demonstrates that WCYB-TV has a strong marketplace presence in Watauga County. Arbitron's 1993 County Coverage Survey Data: North Carolina (Standard/Fringe) for cable and noncable households indicates that WCYB-TV achieves 10% share of total viewing households and a net weekly circulation of 68% in Watauga County. 14. With regard to WCYB-TV's alternate request that the instant communities be excluded from WCNC-TV's ADI market, we find no basis for grant of such a motion. WCYB-TV has failed to introduce any evidence upon which we can conclude that the communities in question should be removed from WCNC-TV's ADI. WCYB-TV's evidence is general in nature and does not give a basis upon which one could conclude that the specific communities involved in this proceeding are not in WCNC-TV's market. Furthermore, in this regard, we note that WCNC-TV places a Grade B contour over the specific communities in question herein. 15. In view of the foregoing, we find that grant of WCYB-TV's request is in the public interest only to the extent that it seeks inclusion of Zionville, Sugar Grove, Vilas, Foscoe, Boone, Blowing Rock, Deep Gap, Beech Mountain, and unincorporated portions of Watauga County, North Carolina, within the station's Bristol, Virginia--Kingsport-Johnson City, North Carolina ADI. ORDER 16. Accordingly, IT IS ORDERED, pursuant to 614(h)(1)(C) of the Communications Act of 1934, as amended (47 U.S.C. 534(H)(1)(C)) and 76.59 of the Commission's Rules (47 C.F.R. 76.59), That the petition for special relief filed by Appalachian Broadcasting Corp. IS GRANTED to the extent indicated in paragraph 15, supra, and in all other respects IS DISMISSED as indicated in footnote 1, supra, or IS DENIED. 17. IT IS FURTHER ORDERED, That this change shall be effective in accordance with the following schedule: WCYB-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 this 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