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File how2ftp (.txt & .wp) is in directory /pub/Bureaus/Miscellaneous/Public_Notices/ ***************************************************************** ******** 1.$//Partial grant of Time Warner's petition for special relief, DA 96-148//$ $/300.534 Carriage of local commercial television signals/$ $/76.7 Special relief and must-carry complaint procedures/$ $/76.59 Modification of television markets/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA 96-148 In re: ) ) Petition of Time Warner Cable ) CSR-3905-A ) For Modification of Station ) WKOI-TV's ADI ) MEMORANDUM OPINION AND ORDER Adopted: February 6, 1996 Released: March 4, 1996 By the Cable Services Bureau: INTRODUCTION 1. Before the Commission is a petition for special relief filed by Time Warner Cable ("Time Warner"), seeking to modify the Dayton, Ohio "area of dominant influence" ("ADI") to exclude the communities served by Time Warner from WKOI-TV's television market. Trinity Broadcasting of Indiana, Inc. ("Trinity"), licensee of Station WKOI-TV (Ch. 43), Richmond, Indiana, filed an opposition to the petition, to which Time Warner 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. MARKET FACTS AND ARGUMENTS OF THE PARTIES 7. In its petition for special relief, Time Warner seeks to delete the communities from WKOI-TV's ADI so that Time Warner's Dayton ADI cable systems in western Ohio will not have to carry that station's signal. Time Warner believes that mandatory carriage of WKOI-TV in the communities does not serve the interests of localism intended by Congress, and that the station fails to satisfy any of the four market factors set forth in the 1992 Cable Act and the Commission's Rules. 8. With regard to the historic carriage factor, the operator asserts that WKOI-TV was never carried in any of the communities. As such, removing the communities from WKOI-TV's ADI would be consistent with Congressional intent because there would be no disruption to established viewing patterns, nor would it deprive WKOI-TV of any existing cable audience in the communities. Petitioner also alleges that WKOI-TV does not provide sufficient coverage or adequate local service to the communities. The operator notes that 12 out of the 15 communities subject to this petition fall outside the station's Grade B contour, and in one instance, the Grade B contour covers only a part of a community. In addition, the average distance from Richmond, Indiana, WKOI-TV's city of license, to the cable headends serving the communities is more than 50 miles. As for programming, Time Warner states that WKOI-TV does little more than retransmit the TBN (Trinity Broadcasting Network) satellite feed. By broadcasting primarily religious programming, contends Time Warner, WKOI-TV caters to a highly specialized audience and the format has little appeal for most of Time Warner's subscribers in the communities. Moreover, the station does not broadcast a sufficient amount of local programming directed at the communities; the sparse original programming WKOI-TV does air, such as "Praise the Lord," is specifically geared toward Richmond, Indiana residents and not Dayton, Ohio residents. As for other stations serving the market, Time Warner states that several Dayton ADI stations, which have been historically carried on the cable system, provide an extensive amount of local programming throughout each broadcast day. Finally, the operator notes that WKOI-TV's level of viewership does not rise to the level of significantly viewed status in any of the counties affected by this petition. Because WKOI-TV is a station watched by so few viewers, requiring carriage of WKOI-TV will not serve the interests or needs of Time Warner's subscribers. 9. In its opposition, Trinity generally states that Time Warner's petition has impermissible singled the station out for different treatment from all other Dayton stations by purposefully avoiding compliance with the 1992 Cable Act's must carry objectives vis-a-vis WKOI-TV. Trinity asserts that this discrimination is "especially grave" because the operator has targeted WKOI-TV, a specialty station providing religious, inspirational, family oriented, and nonviolent programming throughout the Dayton ADI. 10. Trinity asserts that Time Warner's arguments for exclusion under the four market modification factors are either factually erroneous or legally irrelevant, and do not show that WKOI-TV is not part of the Dayton ADI. Trinity believes the operator's Grade B contour and geographical distance claims are irrelevant because Congress decided to define a station's market as part of an economic unit, the ADI, not by a strict mileage standard or by a station's "theoretical" Grade B signal status. Moreover, notes Trinity, the Commission has recognized that a station's economic relationships are not tied to mileage, because in certain market hyphenation cases the Commission has held that major market communities located as much as 75 miles apart are competing in the same market. Trinity adds that mandatory carriage in areas beyond WKOI-TV's Grade B contour were a result sanctioned by Congress and recognized by the Commission. Trinity also points out that Time Warner ignores the fact that most of the communities are located 15-25 miles from Dayton, the largest city in the ADI, and where many of the guests on WKOI-TV's local programming come from. Similarly, the operator does not provide any evidence that advertisers, program syndicators, or even Arbitron treat "West Milton or Piqua or Bradford as part of anything other than the Dayton . . . ADI." Trinity asserts that the operator distorts the historical carriage factor because Congress and the Commission meant for this criterion to be used to determine whether an extension of an ADI is appropriate and not when communities should be deleted. Trinity states that Arbitron shows that WKOI-TV had a net weekly circulation of 2.8% in the Dayton ADI despite not being carried on most cable systems in a heavily cabled market (66.2% cable penetration). Trinity asserts that this is not insignificant viewership for an independent station largely without cable carriage, and is "powerful evidence that not only Arbitron, but the market's television viewers, consider WKOI-TV part of the Dayton ADI." 11. Trinity also rebuts Time Warner's claim that WKOI-TV does not provide local service as the station produces 11.5 hours per week of local programming, almost all of which is public affairs or other non-entertainment material. Trinity argues that Time Warner cannot dispute that the problems of the communities are "intrinsically" different from those of neighboring communities within the ADI such as Greenville or Clayton, Ohio, located just a few miles away . . . ." Trinity states that the programs which WKOI-TV broadcasts cover issues such as drugs and alcohol abuse, education, and crime, all issues which impact all of the communities in the station's ADI, including those which Time Warner seeks to exclude. In addition, Trinity asserts that WKOI-TV broadcasts programming designed to meet the educational and instructional needs of all children in the Dayton ADI. Finally, Trinity counters Time Warner's argument that WKOI-TV's religious format has little appeal in the cable communities by stating that the 1992 Cable Act was designed to prevent cable operators from making anti-competitive judgements based on the content of a local television station's signal. Moreover, the operator's comments are contradictory as three of the cable systems carry some type of religious programming station. According to Trinity, to the one-third of the cable system's affected by Time Warner's request, the issue is apparently not whether its cable subscribers find religious programming attractive, but whether the cable subscribers will ever have the chance to find WKOI-TV's religious programming attractive. 12. In its reply, Time Warner counters the arguments presented by Trinity in its opposition to the petition for special relief. With regard to Trinity's discrimination claim, Time Warner states that the station's argument distorts the plain language of the 1992 Cable Act's legislative history. If Trinity's position were correct, only an ADI modification seeking to exclude every single station within the ADI would be non-discriminatory. This is not, Time Warner argues, what Congress intended, nor is it what Congress said. Rather, Congress meant to avoid discrimination between stations sharing the same city of license, not all stations within an entire ADI. 13. As for Trinity's arguments concerning the four statutory factors, Time Warner asserts that Trinity admits that WKOI-TV has no history of carriage in the communities and that Trinity did not substantiate that WKOI-TV is significantly viewed. As for local service, the operator states that WKOI-TV's programming does not demonstrate a local nexus sufficient to warrant carriage of WKOI-TV. With regard to Trinity's comments concerning the irrelevance of Grade B contour coverage, Time Warner states that the failure to provide Grade B coverage is strong evidence that WKOI-TV's signal lacks the strength to reach many of the viewers living in the communities. The operator concludes by reiterating that the average distance from the communities to Richmond, Indiana exceeds 50 miles, and that it is illogical to believe that a station so far away from the affected communities would be attentive and responsive to local needs. ANALYSIS AND DECISION 14. We grant Time Warner's petition to delete the cable communities of Mechanicsburg, Sidney, Springfield, St. Paris, Urbana, and West Liberty and deny the request with regard to the cable communities of Bradford, Christiansburg, Covington, Piqua, Pleasant Hill, Tipp City, Troy, West Milton, and Yellow Springs. WKOI-TV is licensed to Richmond, Indiana, a community in the westernmost portion of the Dayton, Ohio ADI, a market that encompasses some 12 counties and is roughly 75 miles long and 70 miles wide. Wayne County, Indiana, in which Richmond is situated, is the only Indiana county in the ADI. The station's studio is located in Richmond, Indiana, which is about 35 miles west of Dayton. The station's transmitter, however, is located in Collinsville, Ohio, about 35 miles southwest from Dayton but located in Butler County, which is in the Cincinnati ADI directly to the south of Dayton. This unique geographical circumstance here plays a significant role in our decision. 15. We believe that Time Warner has, in part, met the 1992 Cable Act's market modification test with regard to more than one-third of the cable communities. We note in this instance that Trinity selected to place WKOI-TV's transmitter in Collinsville, which is in the Cincinnati ADI rather than the Dayton ADI, far south of the six communities we have excluded today. The placement of the transmitter in the Cincinnati ADI, nearly 30 miles southeast of its city of license, was an apparent attempt to serve both core markets of the Dayton and Cincinnati ADIs. For example, the station's Grade A contour covers the Cincinnati ADI counties of Butler, Warren, Hamilton, and Union, and its Grade B contour fully covers the counties of Boone, Kenton, Campbell, and Clermont, as well as most of Fayette and Ohio counties. In contrast, the station's Grade A contour fully covers only Preble County and 9/10th of Montgomery County in the Dayton ADI. The station's Grade B contour also only partially covers Darke, Miami, and Greene Counties in the Dayton ADI. Even Wayne County, in which the station's city of license is located, is not fully covered by the station's Grade B contour. As a result of WKOI-TV's placement of its antenna, the six communities we have excluded today are not covered by the station's Grade B contour. 16. Taking the above into consideration, we believe that the operator's deletion request regarding the above six communities appears to be a legitimate request to redraw ADI boundaries to make them congruous with market realities. Moreover, while generally not relevant in market deletion cases, we conclude that WKOI's lack of historical carriage is of evidential significance here because it buttresses our finding of the station's lack of service to the six northern communities at issue. We decline, however, to delete Bradford, Christiansburg, Covington, Piqua, Pleasant Hill, Tipp City, Troy, West Milton, and Yellow Springs from the Dayton ADI vis-a-vis WKOI-TV because these communities are within, or on the very fringe, of WKOI-TV's Grade B contour. In making this decision, we acknowledge that Time Warner noted that it did not ask the Commission to delete the communities of Germantown, Jefferson Township, and Farmersville, even though the station's signal was not historically carried there, because they each fell within the station's Grade B contour. ORDERING CLAUSES 17. Accordingly, IT IS ORDERED, pursuant to 614(h) 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 "Petition for Special Relief" (CSR-3905-A) filed June 2, 1993, by Time Warner Cable IS GRANTED, in part, and DENIED, in part as indicated above. Trinity Broadcasting of Indiana, Inc. shall notify Time Warner 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 Memorandum Opinion and Order with respect to the cable system(s) serving the communities of Bradford, Christiansburg, Covington, Piqua, Pleasant Hill, Tipp City, Troy, West Milton, and Yellow Springs, OH. Time Warner shall come into compliance with the applicable rules within sixty (60) days of such notification. 18. This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules, 47 C.F.R. 0.321. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau