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File how2ftp (.txt & .wp) is in directory /pub/Bureaus/Miscellaneous/Public_Notices/ ***************************************************************** ******** $//Partial grant of WENY-TV's ADI Modification Petition, DA 96-371//$ $/76.7 Special relief and must-carry complaint procedures/$ $/76.59 Modification of television markets/$ $/300.534 Carriage of local commercial television signals/$ Before the Federal Communications Commission Washington D.C. 20554 In re: ) DA 96-371 ) WENY, INC. ) CSR-4126-A Elmira, New York ) ) For Modification of Station ) WENY-TV's ADI ) MEMORANDUM OPINION AND ORDER Adopted: March 14, 1996 Released: March 27, 1996 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. In the above-captioned proceeding, WENY, Inc., licensee of Station WENY-TV (ABC, Channel 36), Elmira, New York (hereinafter "WENY-TV") has requested the Commission to include 27 communities in Bradford County, Pennsylvania, 14 communities in Schuyler County, New York, and 8 communities in Tompkins County, New York within the Elmira, New York "area of dominant influence" ("ADI") for the purpose of obtaining mandatory signal carriage rights on the cable systems serving those communities. The petition is unopposed. BACKGROUND 2. Pursuant to 614 of the Communications 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 614(h)(1)(C) 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 a market area change request. 7. Adding communities to a station's market area 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 market 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 market area 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. In its petition, WENY-TV asks the Commission to add the above-noted communities to the Elmira, New York ADI so that WENY-TV may assert must carry rights on the cable systems serving those communities. WENY-TV provides the following facts in support of its request. WENY-TV has been in operation since 1969 and is located in the Elmira, New York ADI which encompasses the counties of Chemung and Steuben in New York, and the Pennsylvania county of Tioga. With regard to geographic information, WENY- TV explains that Watkins Glen, the county seat of Schuyler County,is roughly 21 miles from Elmira and it is only 18 miles from WENY-TV's transmitter to the headend of the Watkins Glen cable television system. Similarly, Ithaca, the county seat of Tompkins County is about 29 miles to Elmira and WENY-TV's transmitter is 23 miles away from the Ithaca cable system. WENY-TV also operates a television translator on Channel 7 in Tompkins County which serves the Ithaca area. With regard to the major population centers in Bradford County, WENY explains that it is only 17 miles from Elmira to Sayre and it is 23 miles from Elmira to Towanda. The station's transmitter is 20 miles from the cable television headend serving Sayre and Athens and 34 miles from the Towanda cable television headend. 9. Turning to the statutory factors for market modifications, WENY-TV states that it has a history of carriage on virtually all of the cable systems serving the communities in the three counties since it began operations on November 19, 1969. However, WENY-TV notes that with respect to Blue Ridge Cable TV, Inc., which serves the Bradford County, Pennsylvania communities of Troy, Burlington, Columbia Cross Roads, East Troy, Powell and Sylvania, carriage of the signal on that system's basic tier did not commence until approximately 1990. In addition, the cable system serving Leroy did not commence operation until 1977, but carried WENY-TV's signal since that time. WENY-TV, however, is not carried at all on the Blue Ridge cable system serving Camptown, New Albany, and Wyalusing. Additionally, Beaver Valley Cable's systems at Rome, Ulster and Warren Center do not carry its signal. With regard to Schuyler County, New York, WENY-TV states that its signal has been carried since its inception on the cable systems serving the county with the exception of the Haefele, TV, Inc. systems which carried the signal since 1986. The system serves the communities of Alpine, Burdett, Catherine, Cayuta, Hector and Valois. With regard to Tompkins County, New York, the major system serving the county has served the communities of Ithaca, Cayuga Heights, Danby, Dryden, Lansing, Newfield and Trumansburg since at least 1982. 10. With respect to coverage and local service, WENY-TV originally stated that it places a "Grade A contour or better signal" into the counties of Schuyler, Tompkins, and Bradford. WENY-TV later modified its statement to say that its Grade A contour covered all of Schuyler County, as well as much of Tompkins County and a considerable portion of Bradford County. In addition, WENY-TV states that all of Tompkins County and virtually all of Bradford County are within the station's Grade B contour. WENY-TV also asserts that it has historically provided programming to meet the problems, interests and needs of the above- referenced communities. The station includes certain news logs as exhibits, listing several stories reflecting the kind of local issues (sports, crimes, weather, and business activities) it covers in its newscasts. The station also indicates that its offices and studios are not far from the relevant communities, and for this reason, it is able to provide immediate coverage of local news stories. WENY-TV also states that it is the closest ABC affiliate providing service to the three counties. 11. With regard to viewing patterns for WENY-TV, the station submits the 1995 Nielsen "County Coverage Study" ratings data for the Sunday-Saturday/7:00AM - 1:00AM time period. WENY-TV reports that in Bradford County, the station received a 3 share in cable households and an 8 share in non-cable households. In Schuyler County, the station had an 8 share in cable households and a 10 share in non-cable households. In Tompkins County, WENY-TV received a 2 share in cable households and a 1 share in non-cable households. ANALYSIS AND DECISION 12. WENY-TV has provided sufficient evidence to justify its market modification request for all of the communities in the three counties, except for Wyalusing in Bradford County. Accordingly, its petition will be granted in part and denied in part. 13. With regard to Bradford County, WENY-TV has demonstrated historic carriage for all 27 of the named communities with the exception of Camptown, New Albany, Wyalusing, Rome, Ulster and Warren Center. WENY-TV has also demonstrated a history of carriage for all of the communities in Schuyler and Tompkins Counties. With respect to coverage or other local service, WENY-TV has made this showing with regard to Schuyler and Tompkins Counties by representing that these counties are both encompassed by at least the station's Grade B contour. WENY-TV has also made a showing of coverage or other local service to all of the communities in Bradford County, with the exception of the communities of Sugar Run and Wyalusing. 14. WENY-TV, however, has not provided sufficient information regarding whether other stations eligible to be carried by the system fail to provide adequate news coverage or other local programming of interest to the community. However, in this regard, 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. WENY-TV has provided evidence of fairly substantial viewership in both Bradford and Schuyler Counties, while it has provided evidence of only marginal viewership in Tompkins County. In addition to the data submitted by WENY-TV from 1995 Nielsen statistics, it should also be noted that the station received a total quarter hour share of 5 for the same time slot in Bradford County. This figure compares favorably to the total share of 4 received by WMGC-TV, the ABC affiliate in Binghamton. In Schuyler County, WENY-TV received a total share of 9 compared to a 7 share received by WIXT, the local Syracuse ABC affiliate. In Tompkins County, however, WENY-TV received only a 2 total share compared to a 13 share received by same Syracuse ABC affiliate. Review of available Arbitron figures mirror the Nielsen statistics. In Bradford County, WENY-TV received a total share of 7 and 53 net weekly circulation figure compared with a total share of 3 and 32 percent net weekly circulation figure for WMGC-TV. In Schuyler County, WENY-TV garnered a 9 share and a 70 percent net weekly figure compared to a 5 share and a 54 percent weekly figure for WIXT. In Tompkins County, WENY-TV received only a 1 share and a 19 percent net weekly circulation figure compared to a total share of 13 and a 74 percent net weekly figure for WIXT. 16. In view of the foregoing, we will add all of the named communities in Bradford County, with the exception of Wyalusing, to the Elmira ADI. We exclude Wyalusing because of both a lack of historic carriage on the relevant cable systems and because the station has not shown coverage of the community or any other form of local service to it. The remaining Bradford county communities have shown compliance to either one or both of these criteria. With regard to Schuyler County, we will add all of the communities to the ADI because of compliance with all of the relevant factors. Despite the fact that WENY is not widely viewed in Tompkins County, we will add all of the named communities to the ADI because the station has demonstrated both historic carriage to the communities and because of compliance with coverage and local service. ORDER 17. 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-4126-A) filed on October 12, 1993 by WENY, Inc. IS GRANTED to the extent indicated in paragraph 16, supra, and in all other respects IS DENIED. 18. IT IS FURTHER ORDERED, that this change shall be effective in accordance with the following schedule: WENY-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 cable systems shall come into compliance with the applicable rules within 60 days of such notification. 19. 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