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File how2ftp (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** $//Grant of WIFR's ADI modification petition, DA 95-2371//$ $/76.7 Special relief and must-carry complaint procedures/$ $/76.59 Modification of television markets/$ $/300.534 Carriage of local commercial television signals/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA 95-2371 In re: ) ) Benedek Broadcasting of Illinois, Inc. ) CSR-4103-A Freeport, Illinois ) ) For Modification Television Broadcast ) Station WIFR's ADI ) MEMORANDUM OPINION AND ORDER Adopted: November 20, 1995 Released: December 1, 1995 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Benedek Broadcasting of Illinois, Inc., licensee of television broadcast station WIFR (CBS, channel 23), Freeport, Illinois, has filed a petition for special relief seeking to include eighteen communities served by three different cable systems located in Rock County, Wisconsin in the Rockford, Illinois ADI for purposes of the Commission's mandatory signal carriage rules. Oppositions to this petition were filed on behalf of Crown Media, Inc., operator of cable television systems serving several of the communities affected by this petition, and Television Wisconsin, Inc., licensee of Station WISC-TV (CBS, Channel 3), Madison, Wisconsin. WIFR-TV filed a reply to both oppositions. BACKGR OUND 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 here in question are located in Rock County, Wisconsin, and are considered to be part of the Madison, Wisconsin area of dominant influence ("ADI"). Freeport, Illinois, WIFR's city of license, is considered to be part of the Rockford, Illinois ADI and is only 19 miles from the county border. WIFR's transmitter is located 14 miles from the county line, its Grade A contour encompasses most of the county, and its Grade B contour covers the remainder. 9. In support of its petition, WIFR states its signal is currently carried on all three systems and has been for at least the past seven years. WIFR-TV points out that its signal is considered to be significantly viewed in Rock County and that it consistently receives high ratings. Indeed, it maintains that of the 10 stations received over-the-air in Rock County, WIFR generally receives the third or fourth highest share. For instance, from sign-on to sign- off over the past two years, WIFR states that it earned a 9 ratings share in both cable and noncable homes and had a net weekly circulation of 52% in cable homes and 47% in noncable homes for the same period. Further, in its primetime programming, WIFR indicates that it earns a 10 share in cable homes and an 11 share in noncable homes, while for local news it earns a 5 share for its early evening newscasts and a 7 share for late night news. With regard to local programming, WIFR argues that it devotes significant resources for programming that is relevant to the needs of Rock County. In fact, WIFR notes that in one 3-month period, it broadcast 62 stories originating in Rock County. Specifically, the station notes that: a) WIFR personnel routinely meet with Rock County leaders to discuss important county issues; b) the station's local newscasts cover items occurring in Rock County such as breaking news, high school sports, local weather and public affairs programming; and c) WIFR has maintained a news bureau in the county for the past seven years and has assigned a full-time reporter to that bureau. In light of these factors, WIFR requests that the Commission grant its request. 10. Crown Media's opposition argues that while WIFR's petition names the specific communities it wishes to be included within its ADI, the information it provides in support is relevant to Rock County as a whole and not to the individual communities themselves. Without such community-specific information, Crown Media contends that neither the affected cable operators nor the Commission can make an informed decision on WIFR's request. Further, Crown Media argues that the fact that Freeport, WIFR's city of license, is only 19 miles from Rock County, is irrelevant when one considers that Crown Media's principal headend is over 45 miles from Freeport, and Edgerton, one of Crown Media's communities, is 47 miles away. In contrast, Crown Media points out that Madison, Wisconsin, the city of license of Crown Media's own market CBS affiliate, WISC-TV, is only 30.78 miles from Crown Media's principal headend. Crown Media maintains that since all of the communities in question are located in Wisconsin, their residents would clearly regard WISC-TV as their local CBS affiliate over WIFR-TV. One indicator of this, states Crown Media, would be the fact that WISC-TV broadcasts the games of Wisconsin's local NFL team, the Green Bay Packers, while WIFR broadcasts the local NFL team for Illinois, the Chicago Bears. In addition, Crown Media states that of the 62 news stories mentioned by WIFR, 28 concern the community of Beloit alone (a community which is close to the Rock County/Illinois border and not one of Crown Media's communities) and 32 are geared either to the state of Wisconsin or Rock County as a whole. Only two, it contends, relate to communities served by Crown Media. Finally, Crown Media argues that should the Commission grant WIFR's request, such grant should only allow WIFR to assert the requested must carry rights and not retransmission consent. Crown Media maintains that since the modification provisions of the 1992 Cable Act are contained only under the must carry provisions of the statute, it was not Congress' intention that such grants should also confer the ability to request retransmission consent status. 11. In its opposition, WISC-TV states WIFR has not shown how grant of its request promotes the value of localism in Rock County, especially since WISC-TV and the other local market stations already provide more comprehensive and relevant programming. WISC-TV argues that despite the fact that WIFR may provide some coverage of interest to Rock County, as an Illinois station its main focus would naturally be its home state. For WISC-TV, however, Rock County is a primary service area and its signal is significantly viewed in the county. Moreover, in contrast to WIFR's viewership figures, WISC-TV indicates that over the same 2 year period identified by WIFR, it averaged a 19 share in both cable and noncable homes, its primetime programming earned a 13 share in cable homes and a 15 share in noncable homes, and its early and late evening newscasts earned a 33 share and 32 share, respectively. WISC-TV maintains that, along with the other Madison ADI market stations, it provides extensive coverage of news specific to Rock County and the communities in question. Specifically, WISC-TV notes that a) it has had a news bureau in Rock County for the past 11 years; b) the station's news department covers events in the county on a regular and continuous basis; c) WISC-TV provides comprehensive local weather, and extensive coverage of school affairs and local sporting events; and d) a majority of WISC- TV's news coverage emanates from Madison, the state capital, and the station is the only one with a full-time state capital reporter. Finally, WISC-TV states that it believes that the real purpose behind WIFR's modification request is not localism, but to ensure the station's continued receipt of the not inconsiderable advertising revenues it gains from Rock County businesses. WISC-TV, contends, however, that the rationale for allowing modifications is to ensure that residents have access to truly local broadcast outlets. It concludes that WIFR has failed this test. 12. WIFR's reply avers that the arguments raised by Crown Media are frivolous and without merit and those of WISC-TV self-serving and anti-competitive. Initially, WIFR argues that instead of trying to challenge its showing, WISC-TV merely attempts to undermine the waiver on the grounds that WISC-TV is a more appealing and relevant station. WIFR states that it does not deny that WISC-TV has a formidable presence in Rock County, but it maintains that this fact alone does not undercut WIFR's own presence in the county. Moreover, despite WISC-TV's assertions, WIFR points out that the majority of the information it provided was community-specific: a) WIFR has enjoyed carriage in every listed community; b) either its Grade A or Grade B contour encompasses every community; c) 48 of its 62 news stories identify a specific community and the remainder, while not community-specific, certainly concern every Rock County resident; and d) even those stories originating only in Beloit or Janesville would be relevant to nearly everyone in the county since these 2 communities alone account for 63% of the county population. Finally, WIFR argues that numerous stations across the country have communities in their market across state lines. It maintains that this is not an impediment when the important consideration in determining a market is the nature of the station and the station's audience. WIFR contends that it adds a source of diversity to the Rock County viewers. With regard to Crown Media, WIFR states that the operator has provided no basis for inferring from the data provided that WIFR does not have substantial viewer support in Rock County. While Crown Media points to the fact that Edgerton (the site of its principal headend) is 45 miles from Freeport and only 31 from Madison, notes WIFR, the operator fails to mention that: 1) Edgerton, which is on the northern border of the county, has only 4200 residents; and 2) Janesville, where over two- thirds of Crown Media's subscribers reside is substantially closer to Freeport than to Madison. In addition, WIFR argues that not only did 16 of its referenced newscasts originate in Janesville, but it conducted numerous promotions within the community, and that the station's monthly "Rock County Reports" is specific to the Janesville area. Finally, the petitioner avers that Crown Media's contentions that WIFR is seeking only must carry rights and not retransmission consent rights as well, or that the 1992 Cable Act can be interpreted to mean that only must carry rights can be granted as a result of a modification simply because of the placement of the provisions are in error. The Act provides that all local stations, regardless of how a station achieves that local status, are entitled to a choice of either must carry or retransmission consent status. Since this is a statutory requirement, states WIFR, the Commission does not have the right to withdraw such authority. DISCUSSI ON 13. We shall grant WIFR's request to include the communities of Afton, Beloit, Clinton, Edgerton, Evansville, Footville, Fulton Township, Harmony Township, Janesville, Janesville Township, Milton, Milton Township, Ordfordville, Rock Township, South Beloit, Turtle Town, and Union Township, Wisconsin within the Rockford, Illinois ADI for must carry purposes. Initially, we note that WIFR has demonstrated a long history of carriage on the cable systems serving the above communities. The fact that WIFR is an out-of-state signal would not be a bar to carriage since ADI markets often cross state boundaries. Indeed, in the case herein, it is particularly relevant that 10% of WIFR's overall revenue is generated within communities outside its own state. Secondly, WIFR has also shown that it provides coverage of and service to these communities and that they are all encompassed by either its Grade A or Grade B contour. It is especially of note that the county's two largest communities, Janesville and Beloit, fall within WIFR's Grade A contour. We have stated previously that this, alone, is sufficient to satisfy this factor. WIFR acknowledges, and our own review confirms, that WISC-TV in the Madison, Wisconsin ADI also covers local events in the subject communities. However, we do not believe that Congress intended for 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. In any event, it should be pointed out that WISC-TV's priority as a local station for the communities in question is not at risk when the record appears to indicate that WISC-TV's transmitter is located 15 miles closer to Crown Media's principal headend than the transmitter of WIFR. Finally, with regard to viewing patterns, the most recent Arbitron county coverage reports of 1993-94 confirm WIFR's assertion that it achieves substantial viewership in Rock County. According to Arbitron, the station receives a total viewing share of 10% and a net weekly circulation of 50% in Rock County. Finally, the right of election between must carry and retransmission consent is statutorily-mandated, and is, therefore, not something which can be arbitrarily changed at either the discretion of the cable operator or this Commission. As a result, Crown Media's request to limit WIFR's grant to must carry status only must be denied. ORDER 14. In view of the foregoing, we find that grant of WIFR's petition is in the public interest. 15. 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 Benedek Broadcasting of Illinois, Inc. IS GRANTED. WIFR shall notify the relevant cable systems 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 Order. The affected cable systems shall come into compliance with the applicable rules within sixty (60) days of such notification. 16. 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