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File how2ftp (.txt & .wp) is in directory /pub/Bureaus/Miscellaneous/Public_Notices/ ***************************************************************** ******** $//Grant of WHIZ-TV's ADI petition, DA 96-168//$ $//76.7 Special relief and must-carry complaint procedures/$ $/76.59 Modification of television markets/$ $/300.534 Carriage of local commerical television signals/$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 DA 96-168 In re: ) ) Southeastern Ohio Broadcasting Company ) CSR-4104-A Zanesville, Ohio) ) For Modification of the Zanesville, Ohio ) ADI ) MEMORANDUM OPINION AND ORDER Adopted: February 12, 1996 Released: February 21, 1996 By the Cable Services Bureau: INTRODUCTION 1. Southeastern Ohio Broadcasting Company, licensee of Station WHIZ-TV (NBC, Ch. 18), Zanesville, Ohio, has filed a petition for special relief seeking to include the communities of Newark, Newark Township, Heath, Granville Township, Granville Village, Buckeye Lake Village, Hanover, Toboso, St. Louisville Village and Hebron Village, Ohio in the Zanesville, Ohio ADI for purposes of the Commission's mandatory signal carriage rules. Oppositions were filed on behalf of Times Mirror Cable Television and Outlet Broadcasting, Inc., licensee of Station WCMH-TV (NBC, Ch. 4), Columbus, Ohio to which WHIZ-TV has responded. 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 market 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 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 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 one such duplicating signal, the operator is obliged to carry the station from 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, or may simply provide the system operator with an expanded list of must-carry signals from which to choose (i.e., when the system has used up its channel capacity mandated for broadcast signal carriage, or determined which of duplicating network affiliated stations are entitled to carriage priority). MODIFICATION ARGUMENTS 8. The communities in question are all located in Licking County, Ohio and are considered to be part of the Columbus, Ohio area of dominant influence ("ADI"). WHIZ-TV is in the Zanesville, Ohio ADI. WHIZ-TV is located no more than 35 miles from the communities herein, its City Grade contour encompasses Hanover and Toboso, its Grade A contour encompasses Newark, Newark Township and Heath, and its Grade B contour encompasses the remaining communities. 9. In support of its petition, WHIZ-TV states that not only is it the only station in the Zanesville, Ohio ADI market, but the market consists of only one county, Muskingum County, Ohio, which is surrounded by the Columbus ADI on three sides. All of the subject communities are served by Times Mirror Cable Television dba Dimension Cable Services (hereinafter "Times Mirror"). WHIZ-TV indicates that it was notified on May 3, 1993 by Times Mirror that its signal would be dropped from the system serving Licking County in favor of an NCE station, WOUC-TV (Educ., Ch. 44), Cambridge, Ohio, which is entitled to must-carry status. WHIZ-TV argues that this notice contradicts an earlier May 31, 1990 letter from Times Mirror which advised the station that it would continue to be carried. WHIZ-TV points out that WOUC-TV entirely rebroadcasts the programming of Station WOUB-TV (Educ., Ch. 20), Athens, Ohio and that the two stations are virtually one in that they are both licensed to Ohio University, are managed and programmed by the University's Telecommunications Center in Athens, Ohio and there are no separate studios or personnel for WOUC-TV in Cambridge, Ohio. Further, while Cambridge, WOUC-TV's city of license is within fifty miles of Times Mirror's communities in Licking, the station's transmitter site is located 17 miles farther eastward. WHIZ-TV maintains that WOUC-TV/WOUB-TV provides much of the same programming already available to Times Mirror's subscribers via Station WOSU-TV (Educ., Ch. 34), Columbus, Ohio and that WOSU-TV provides specific local programming which WOUC-TV/WOUB-TV lacks. While such duplication is not sufficient to eliminate WOUC-TV's carriage rights, WHIZ-TV argues that since WOUC-TV is carried on the system on a channel shared by the Heath school system, adjustments could be made by both the school system and Times Mirror to carry virtually all of WOUC-TV's programming without requiring WHIZ-TV's deletion. In addition, WHIZ-TV states that it fully meets the criteria established for modification requests in that: a) it has been historically carried on the Times Mirror system since at least April 8, 1988; b) it has traditionally covered civic and school events, news programming, public service announcements, election results and school sports in Licking County; c) the Nielsen County Coverage figures for 1991/1992 indicate that WHIZ-TV reaches 21% of the 47,280 homes in Licking County; d) merchants in all of the communities regularly advertize on WHIZ-TV; e) contests offered through WHIZ- TV routinely generate numerous responses from subscribers in Licking County; and f) lists containing over 317 signatures were sent to WHIZ-TV objecting to its loss and over 287 residents of Newark, Heath, Hebron, Buckeye Lake and Granville signed petitions seeking its continued carriage on their cable system. WHIZ-TV concludes that no other station carried by Times Mirror, including the Columbus NBC, offers the same level of local programming. It is therefore clear that it merits must carry status on the Times Mirror system. 10. Times Mirror states in opposition that the question as to whether WOUC-TV is entitled to carriage is irrelevant to the matter at hand. In any event, it argues, there is no restriction on the carriage of a qualified NCE station simply because it substantially duplicates another station's programming. It maintains that WHIZ-TV has failed to make a persuasive showing for the following reasons: a) Previous historical carriage alone does not entitle WHIZ-TV to continued carriage in light of the new regulations; b) All of the public service announcements cited by WHIZ-TV are from early 1993 and may well reflect a conscious effort by the system to increase its local coverage just prior to the filing of its request. Further, Newark is the only community to which the PSA's refer; c) Nearly all of the school sports events involve a Zanesville team and the academic programming includes Zanesville schools. Neither can be said to specifically represent Licking County interests; d) More than adequate coverage of local news and events of interest to Licking County residents is provided by other local broadcast stations and Times Mirror's own local origination channel; and e) WHIZ-TV fails to provide viewership data on cable and noncable homes as required by the rules. The data it does provide is incomplete and should not be considered. In light of the above, Times Mirror urges that WHIZ-TV's petition be denied. 11. In a pleading filed in support of Times Mirror's opposition and incorporating it by reference, Outlet Broadcasting, Inc., licensee of Station WCMH-TV (NBC, Ch. 4), Columbus, Ohio, argues that WHIZ-TV is woefully deficient with regard to the Commission's third criterion. It states that WHIZ-TV's statement that "no other station . . . offers such local programming" is a claim which is far from accurate. WCMH-TV points out that not only does Times Mirror's local origination channel cover more local sporting events than does WHIZ-TV, but the predicted Grade B contours of at least four of the Columbus, Ohio stations encompasses the communities. It maintains that being licensed to Columbus does not preclude these stations from addressing the needs of the Licking County residents. This is particularly evident, it continues, when it can be shown that in the first ten months of 1993 WCMH-TV broadcast hundreds of news stories specifically involving Licking County and even more public affairs and non-entertainment programming. In view of this and the arguments raised by Times Mirror, WCMH-TV requests denial of WHIZ-TV's request. 12. In its reply, WHIZ-TV argues that WCMH-TV's objection is late-filed and should be rejected. However, should it be accepted, it states that WCMH-TV is mistaken in its assumption that a modification request must make a persuasive showing on each of the four factors outlined by the Commission. At paragraph 47 of the Report and Order the Commission states that ". . . we do not want to restrict the types of evidence that parties can submit to demonstrate the propriety of changing a station's must-carry market. We also do not believe that it is advisable to prejudge the importance of any of the factors specified in the statute since each case will be unique." All of the criteria are therefore of equal value and WHIZ-TV avers that it has provided more than enough evidence regarding the other criteria (i.e., historical carriage, Grade B coverage, local news coverage and viewing patterns) to justify grant of its request. In any event, WHIZ-TV maintains, it has not claimed that no other station provides such coverage, merely the obvious fact that stations in large cities would more naturally devote the majority of their news programming to covering their immediate problems. Moreover, any such programming provided by WCMH-TV or Times Mirror's origination channel does nothing to negate the contribution provided by WHIZ-TV. WHIZ-TV states that it has more than met its burden in supporting its petition. DISCUSSION 13. We shall grant WHIZ-TV's request to include the communities of Newark, Newark Township, Heath, Granville Township, Granville Village, Buckeye Lake Village, Hanover, Toboso, St. Louisville Village and Hebron Village, Ohio within the Zanesville, Ohio ADI for must carry purposes. Initially, we point out that the question of Station WOUC-TV's must carry status on the Times Mirror system is a matter that is entirely separate from the request at hand. Moreover, Times Mirror has submitted no evidence since no evidence has been submitted that indicates that Times Mirror has reached the maximum number of must carry stations required by our rules. With regard to the criteria to be met by those parties seeking a market modification, we note first that WHIZ-TV has demonstrated a long history of carriage on the cable system serving the above communities. Secondly, WHIZ-TV has shown that it provides coverage of and service to these communities and that they are all encompassed either by its Grade A or Grade B contour. We have stated previously that this, alone, is sufficient to satisfy this factor. Third, WHIZ-TV's showing with regard to local programming augments this finding. The petitioner acknowledges, and our own review confirms that WCMH-TV in the Columbus ADI also covers local events in the subject communities. Further, 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 can 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. With regard to viewing patterns, the Arbitron county coverage reports for 1993-94 indicate that WHIZ-TV achieves a total viewing share of 2% and a net weekly circulation of 17% in Licking County, while A.C. Nielsen data for 1995 indicates a 2% viewing share and a 23% net weekly circulation. While these figures are substantially less than those for WCMH- TV in its home ADI, they are still sufficient enough to confirm WHIZ-TV's viewership claims when combined with the fact that WHIZ-TV's proximity to the subject communities undoubtedly results in unrestricted off-air carriage. We also recognize that this data is county data, rather than community-specific data, but we shall accept it as probative (although not conclusive) in cases of this type, absent evidence that it is not fairly reflective of viewing in the actual communities in question. ORDER 14. In view of the foregoing and considering the unusual nature of the Zanesville ADI in relation to the Columbus ADI in that Zanesville is located near the center of the Columbus market and virtually surrounded by its sister market, we find that grant of WHIZ-TV's petition is in the public interest. 15. Accordingly, it IS ORDERED, pursuant to 614(c) 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 captioned petition for special relief, filed by Southeastern Ohio Broadcasting Company IS GRANTED. This change shall be effective in accordance with the following schedule: WHIZ-TV shall notify the cable system in question in writing of its carriage and channel position elections, see 47 C.F.R.  76.56, 76.57, 76.64(f), within thirty (30) days of the release date of this Memorandum Opinion and Order. The affected cable system shall come into compliance with the applicable rules within 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