NOTICE ********************************************************* NOTICE ********************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file how2ftp. File how2ftp (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** $//MO&O, partial grant of WTVA's ADI petition, DA 95-2376//$ $/76.7 Special relief & must carry complaints procedures/$ $/76.59 Modification of television markets/$ $/300.534 Carriage of local commercial television signals/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA 95-2376 In re: ) ) WTVA, Inc. ) CSR-4102-A ) Petition for Special Relief ) for Modification of Station ) WTVA's ADI ) MEMORANDUM OPINION AND ORDER Adopted: November 20, 1995 Released: December 4, 1995 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. WTVA, Inc., ("WTVA"), licensee of Station WTVA (NBC, Channel 9), Tupelo, Mississippi, 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 various cable systems in the Mississippi counties of Grenada, Lafayette, and Union. The various cable systems that WTVA names serve the following communities: Grenada and unincorporated portions of Grenada County (B&E Grenada, Inc.); Oxford, University of Mississippi, and unincorporated portions of Lafayette County (TCI of North Mississippi); Coles Point and Harmontown in Lafayette County (Foster Communications, Inc.); and Igmar, Myrtle, New Albany, and unincorporated portions of Union County (TCI of North Mississippi). The petition is opposed by Scripps Howard Broadcasting Company, licensee of WMC-TV (NBC, Channel 5), Memphis, Tennessee. WTVA filed a reply. 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. MARKET FACTS AND ARGUMENTS OF THE PARTIES 8. According to WTVA's petition, the community of Grenada and unincorporated portions of Grenada County are considered to be part of the Greenwood-Greenville, Mississippi ADI for must-carry purposes pursuant to Arbitron's 1991-1992 Television Market Guide. WTVA represents that the county is now part of the Columbus-Tupelo ADI, which is the ADI to which WTVA belongs. The Lafayette County communities of Oxford, Coles Point, and Harmontown, as well as unincorporated portions of the county, are considered to be part of the Memphis ADI. According to WTVA, the Union County communities of Igmar, Myrtle, New Albany, and unincorporated portions of the county once belonged to the Memphis ADI, but are now currently considered a part of the Columbus-Tupelo ADI. 9. In support of its petition, WTVA states that the station has been carried in Grenada County on the B&E Grenada, Inc. system since 1984 and on the Futurevision Cable system since 1991. With regard to the communities in Lafayette County, WTVA represents that TCI of North Mississippi has carried the station since 1984. WTVA states that the same system has carried its signal into the communities of Union County since 1984. With regard to providing news coverage and other local service to the communities, WTVA states that the station places a Grade A signal over both Grenada and Lafayette Counties, thus encompassing all the communities at issue in this matter. With regard to the Union County communities, WTVA states that the station places a Grade A signal over most of the county and a Grade B signal over the remainder of the county. WTVA also represents that the station provides local news coverage throughout the counties, including stories specific to Oxford, New Albany, and the University of Mississippi. WTVA also notes that several Lafayette County and Union County businesses regularly advertise on WTVA. 10. With regard to other station coverage of the communities in question, WTVA states that no other significantly viewed station places a Grade B or better contour over Grenada County, and no NBC affiliate other than WTVA places a Grade B contour over any portion of Grenada County. WTVA represents that the Memphis NBC affiliate, WMC-TV, covers approximately only half of Lafayette County with a Grade B signal. With regard to Union County, WTVA represents that the Memphis NBC affiliate places a Grade B signal over only approximately half of the county. Regarding local viewing patterns, WTVA states that according to Arbitron's 1992-1993 ADI market figures, the station receives a 55 share and a 99 percent net weekly circulation figure in noncable households and a 12 share with a 69 net weekly circulation in cable households. In Lafayette County, the station receives a 23 share and an 80 percent net weekly circulation in noncable households and a 10 share and a 39 percent net weekly circulation in cable households. In Union County, WTVA receives a 47 share and a 78 percent net weekly circulation in noncable households and a 39 share and a 93 percent net weekly circulation in cable households. 11. In opposition, WMC-TV, the NBC affiliate in Memphis, Tennessee, asserts that WTVA has not made the required showing for each of the four statutory factors necessary to warrant the requested market modification. Generally, WMC-TV argues that it provides the necessary service to the markets in question better than does WTVA, and that therefore WTVA's petition should be denied. In reply, WTVA argues that its petition does not seek to exclude WMC-TV from carriage in the subject cable communities. According to WTVA, WMC-TV's opposition appears to be an attempt to prove that it, rather that WTVA, is entitled to must-carry status in these counties. Moreover, WTVA argues that WMC-TV has presented no evidence to contradict WTVA's evidentiary showing under the four-prong statutory test that the station is entitled to must-carry status in the relevant cable communities. ANALYSIS AND DECISION 12. As a preliminary matter, we note that according to Arbitron's 1991-1992 Television Market Guide, Grenada County is considered to be part of the Columbus-Tupelo ADI. According to WTVA's petition, Grenada County and unincorporated portions of the county are considered to be part of the Greenwood-Greenville ADI. WTVA states that it recognizes that the county is currently a part of the Columbus-Tupelo ADI, but its own examination of Arbitron's 1991-1992 Television Market Guide indicates that the county was not in that ADI during that time period. WTVA is correct that the station's must-carry zone is determined by the ADI that existed in 1991-1992. WTVA is incorrect, however, in its determination that the county was part of the Greenwood-Greenville ADI during that time. Our examination of Arbitron's Television Market Guide reveals that Grenada County was part of the Columbus-Tupelo ADI during 1991-1992 and, therefore, WTVA currently has carriage rights in Grenada County. Accordingly, we find WTVA's request to modify its television market to include Grenada County to be moot. 13. According to Arbitron's 1991-1992 Television Market Guide, Lafayette County and Union County are considered to be part of the Memphis ADI. WTVA has demonstrated in its petition that the relevant communities in question in these counties are logically part of its ADI market under the factors specified in the 1992 Cable Act, and its petition will accordingly be granted in that regard. For the most part, and with the exception of Coles Point and Harmontown, WTVA has demonstrated a history of carriage on the cable systems serving the relevant communities. With regard to whether the station provides coverage or other local service to the communities, WTVA has demonstrated that it provides at least a Grade B signal to all of the communities in question. The station also provides local news and informational programming to the communities and is relied upon by businesses for advertising. 14. WTVA has not provided information as to 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. WTVA merely asserts that WMC-TV does not provide a Grade B signal over the entirety of Lafayette and Union Counties. However, we do not believe that Congress intended this criterion 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. 15. Finally, we are satisfied by the available evidence submitted by WTVA that the cable and noncable household viewing patterns for the communities in question indicate widespread viewership of the station. The data submitted also indicates that WTVA is competitive with neighboring NBC affiliate WMC-TV. In Lafayette County, WTVA has a 23 share of viewing hours and a net weekly circulation of 80 in noncable households (compared to a 24 share and a net weekly circulation of 84 for WMC-TV) and a 10 share of viewing hours and a net weekly circulation of 39 in cable households (compared with 25 share and a net weekly circulation of 83 for WMC-TV). In Union County, WTVA has a 47 share of viewing hours and a net weekly circulation of 78 in noncable households (compared with a 17 share and a net weekly circulation of 49 for WMC-TV) and a 39 share of viewing hours and a net weekly circulation of 93 in cable households (compared with a 9 share and a net weekly circulation of 60 for WMC-TV). 16. With regard to WMC-TV's opposition, we do not believe that any evidence has been presented by the station which would contradict WTVA's showing that its television market should be modified to include the communities in question. Moreover, we agree with WTVA that its request to add communities to a station's must-carry zone does not mandate the deletion of carriage of another station. WTVA's petition only requests the extension of its must-carry zone to the cable communities that it claims it serves. WTVA does not ask the Commission to delete from WMC-TV's must-carry zone those counties that WTVA requests to have added to its must-carry zone. 17. Considering the totality of the facts and circumstances in this case, we are convinced that WTVA has sufficiently justified its request to add the named communities in Lafayette and Union Counties to the Columbus-Tupelo ADI. Although there is no evidence of historic carriage of the station on the cable system serving Coles Point and Harmontown in Lafayette County, we are nonetheless convinced that these communities should be added to the station's television market because the station provides coverage or other local service to the communities and because of widespread viewership of the station in the county. ORDER 18. In view of the foregoing, we find that grant of WTVA's petition to the extent indicated in paragraph 17, supra, is in the public interest. 19. 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 (CSR-4102-A) filed September 10, 1993 by WTVA, Inc. IS GRANTED to the extent indicated in paragraph 17, supra, and in all other respects IS DISMISSED as moot. 20. IT IS FURTHER ORDERED, that this change shall be effective in accordance with the following schedule: WTVA 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 cable systems shall come into compliance with the applicable rules within 60 days of the above notice. 21. These actions are taken pursuant to authority delegated by 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau