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File how2ftp (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** $//MO&O granting WRIC-TV's request to expand its ADI, DA 95-2381//$ $/76.56 Signal carriage obligations./$ $/76.59 Modification of television markets./$ Before the FEDERAL COMMUNICATION COMMISSION Washington, DC 20554 DA 95-2381 In re: ) ) Nationwide Communications, Inc. ) CSR-3872-A Petersburg, Virginia ) ) For Modification of ) Station WRIC-TV's ADI ) MEMORANDUM OPINION AND ORDER Adopted: November 22, 1995 Released: December 1, 1995 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Nationwide Communications, Inc., licensee of Station WRIC-TV (ABC, Channel 8), Petersburg, Virginia has filed a "Petition for Special Relief," in addition to three supplemental pleadings, seeking to include within the Richmond, Virginia "area of dominant influence" certain cable communities, all of which are located in Albemarle County, Virginia, and are served either by Northstar Cable ("Northstar") or by Multi-Channel T.V. Cable Company, d/b/a Adelphia Cable Communications ("Adelphia"). WRIC-TV's petition is unopposed. BACKGROUND 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 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 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 a single affiliate of a broadcast network, the operator is obliged to carry the affiliate from within the ADI of the station 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 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 PETITIONERS' ARGUMENTS 8. The communities at issue are all in Albemarle County, Virginia, which comprises the Charlottesville, Virginia ADI. This ADI is located on the northwest border of the Richmond, Virginia ADI, and approximately half of Albemarle County is within WRIC-TV's Grade B contour (including Charlottesville, but excluding both Earlysville and Crozet). 9. In support of its petition, WRIC-TV states that it has been carried both on the Adelphia and the Northstar cable television systems at least since 1986, but that Adelphia notified the station in May, 1993 that it had reconfigured its system so that it would be able in the future to carry different signals in Albemarle County, which is currently located in the Charlottesville ADI, from those it carried in Louisa County , which is currently in the Richmond ADI.. In addition, WRIC-TV admits that Adelphia has also carried Station WHSV-TV (ABC, Channel 3), Harrisonburg, Virginia since at least 1986, and that its Grade B contour covers the entire County of Albemarle. WRIC-TV , however, maintains that only it has a satellite truck, which enables it alone to cover breaking news instantaneously in Charlottesville and the rest of the County. WRIC-TV adds that it both sponsors and covers the Virginia Film Festival (which it states is the largest annual city and regional festival in Charlottesville), and the station notes that it covers many of the University of Virginia football and basketball games as part of its news broadcasts. During 1993, WRIC-TV also cites a dozen other local events it has covered in Charlottesville, and it lists fourteen other public affairs programs focusing on local and regional issues of concern to residents both of Charlottesville and of the County that it states it broadcast between 1990 and 1993. In addition, WRIC-TV cites a 1991 study prepared by Katz Programming (a national sales and advertising agency) which focused on ratings data for Charlottesville and which only involved WRIC-TV, because it was the predominate ABC outlet in the community. WRIC-TV also notes that both it and WHSV-TV have been recognized as significantly viewed in Albemarle County, while a third ABC-affiliate, Station WSET-TV (ABC, Channel 13), Lynchburg, Virginia, has not. WRIC-TV adds that WSET-TV's Grade B contour does not cover Charlottesville or the vast majority of Albemarle County, but that all the designated cable communities, except Crozet and Earlysville, are within WRIC-TV's Grade B contour. According to WRIC-TV, all these facts are reflected by Arbitron's 1992 survey, Television County Coverage: Virginia which gives the following viewership data for these three stations in Albemarle County: Noncable Cable Households Households Net Weekly Net Weekly Share Circulation Share Circulation WRIC-TV 12 54 8 60 (ABC, Channel 8) Petersburg, VA WHSV-TV 3 16 5 51 (ABC, Channel 3) Harrisonburg, VA WSET-TV - - - 4 (ABC, Channel 13) Lynchburg, VA 10. Finally, WRIC-TV notes that both Charlottesville and Albemarle County were included by Arbitron in the Richmond ADI prior to 1985, and by Nielsen prior to 1988 in its "dominant market area". However, both organizations now recognize Albemarle as a separate and distinct ADI or DMA, but there is no ABC-affiliate in that County. Therefore, WRIC- TV wants to permanently protect its must-carry rights there, even though it has been entitled to mandatory carriage by Northstar and by Adelphia, because they both serve communities in Louisa and in Fluvanna Counties, which are currently part of the Richmond ADI. However, WRIC-TV notes that cable operators are permitted to offer different must-carry channel line- ups in different communities if they become technically capable of doing so based on their location relative to the various ADIs. See Report and Order in MM Docket No. 92-259, 8 FCC Rcd 2965, 2975 (1993). ANALYSIS AND DECISION 11. We shall grant WRIC-TV's petition. The station has demonstrated historic carriage by the cable systems serving the above communities (factor one). In addition, WRIC-TV has demonstrated coverage and other local service to the Charlottesville area (factor two), and the evidence of viewing patterns indicates a strong preference for WRIC-TV among network viewers in Albemarle County who give it the highest ratings for an ABC-affiliate, both on cable and off cable (factor four). Insofar as the third factor is concerned, while WRIC-TV has not fully addressed the issue of whether other stations entitled to mandatory carriage by cable systems in these communities (including affiliates of other networks and independents) already provide news coverage of issues of concern to them, as well as carriage or coverage of sporting or other events of interest there, 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 at 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 that might provide programming geared to their communities. In this case, because other stations do appear to serve the communities named by WRIC-TV, this enhancement factor does not appear to be applicable. However, even absent such enhancement, WRIC-TV's showing on each of the other factors is sufficient to warrant grant of the relief requested. We shall also grant the requested waiver for the communities of Crozet and Earlysville, even though they are both approximately ten miles outside of WRIC-TV's Grade B contour, because the station has shown historic carriage by Adelphia, the cable system serving both communities (factor one), and because there is no reason to believe that WRIC-TV's high viewership ratings throughout the rest of Albemarle County will likely be skewed so that it would be significantly lower either in Crozet or in Earlysville (factor four). Therefore, for the purposes of determining mandatory signal carriage obligations, we shall consider the communities previously specified by WRIC-TV in Albemarle County, Virginia to be part of the Richmond ADI with respect to carriage of WRIC-TV, as well as within the Charlottesville, Virginia ADI. 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. ORDERING CLAUSES 12. Accordingly, IT IS ORDERED, pursuant to 614(h) of the Communications Act of 1934, as amended, (47 U.S.C. 534) and 76.56 and 76.59 of the Commission's Rules (47 CFR 76.56 and 76.59), That the captioned petition for special relief filed June 2, 1993 by Nationwide Communications, Inc. (CSR-3872-A) IS GRANTED. This change shall be effective in accordance with the following schedule: WRIC-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 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 sixty (60) days of such notification. 13. 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