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?<#Xj\  P6G;9XP##G6X@`7@# n t #x6X@`7iX@# n t $//Channel 33, Inc. (WBFSTV), MO&O, DA 96360//$ $/76.59 Modification of television markets/$  ?<$/300.534 Carriage of local commercial television signals/$ n t #G6X@`7@# n t   XX-T  #Xj\  P6G;9XP# T 2+Before the w Federal Communications Commission  X- Washington DC 20554#|\  P6G; 5P#  I<TP# G6X@`7@#  X-#Xj\  P6G;9XP# DA96360#G6X@`7@# ĐX(#P  X -#Xj\  P6G;9XP#In re:x` `  hh) x` `  hh)  Xr -CHANNEL 33, INC.hh)@CSR3884A  X[ -Miami, Florida hh) x` `  hh)  X--For Modification of hh)  X-Station WBFSTV's ADIhh)  MEMORANDUM OPINION AND ORDERTP  X-xAdopted: March 13, 1996hh@hppReleased: March 22, 1996 By the Cable Services Bureau: %INTRODUCTION TP  X-x1.` ` Channel 33, Inc. ["WBFSTV"], licensee of Station WBFSTV (Ind., Channel 33), Miami, Florida, has filed the captioned petition for special relief seeking to include the communities of Atlantis, Belle Glade, Boca Raton, Boynton Beach, Delray Beach, Highland Beach, Jupiter, Pahokee, Palm Springs, Village of Golf, Wellington, and West Palm Beach, Florida within the Miami, Florida "area of dominant influence" for purposes of the cable television mandatory broadcast signal carriage rules. WBFSTV's petition is opposed by Malrite Communications Group, Inc. ["WFLX"], licensee of Television Broadcast Station WFLX (Ind., Channel 29), West Palm Beach, Florida; Photo Electronics, Inc. ["WPEC"], licensee of Television Broadcast Station WPEC (ABC, Channel 12), West Palm Beach, Florida; Krypton Broadcasting of Fort Pierce, Inc. ["WTVX"], licensee of Station WTVX (CBS, Channel 34), Fort Pierce, Florida; and WB Cable Associates, Ltd., dba West Boca Cablevision ["West Boca"], operator of a cable television system serving Boca Raton and unincorporated portions of Palm Beach County, Florida. WBFSTV has replied. "(0*0*0*("Ԍ (.BACKGROUNDTP"(0*0*0*'"Ԍ X(-x2.` ` Pursuant to 614 of the Communications Act and implementing rules adopted"(0*0*0*'"  X-    by the Commission in its Report and Order in MM Docket 92259,r Xy-#Xj\  P6G;9XP#э 8 FCC Rcd 2965, 29762977 (1993).r 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  X-influence" or ADI as defined by the Arbitron audience research organization.Gy X-#Xj\  P6G;9XP#э Section 76.55(e) of the Commission's Rules provides that the ADIs to be used for purposes of the initial implementation of the mandatory carriage rules are those published in  X-Arbitron's 19911992 Television Market Guide.G 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 homemarket stations receive a preponderance of total viewing hours in the county. For purposes of this calculation, both overtheair and cable television viewing  X -are included.  X-#Xj\  P6G;9XP#э Because of the topography involved, certain counties are divided into more than one sampling unit. Also, in certain circumstances, a station may have its home county assigned to an ADI even though it receives less than a preponderance of the audience in that county. For  Xm-a more complete description of how counties are allocated, see Arbitron's Description of  XX-Methodology.  X -x3.` ` 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: Xxwith 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: Xxthe Commission shall afford particular attention to the value of localism by taking into account such factors as  XxX` ` (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;x` XxX` ` (II) whether the television station provides coverage or other local service to such community; ` XxX` ` (III) whether any other television station that is eligible to be carried by" W 0*0*0*z" 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 ` XxX` ` (IV) evidence of viewing patterns in cable and noncable households within the areas served by the cable system or  X_-systems in such community._ X-#Xj\  P6G;9XP#э Communications Act of 1934, as amended, 614(h)(1)(C)(ii), 47 U.S.C. 534(h)(l)(C)(ii).x`  X1-x4.` ` The legislative history of this provision indicates that: Xxwhere 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.  T   * * * * *TP Xx` ` [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  X-market.b X-#Xj\  P6G;9XP#э H.R. Rep. No. 628, 102d Cong., 2d Sess. 97 (1992).   X-x5.` ` The Commission provided guidance in its Report and Order in MM Docket 92259, supra, to aid decision making in these matters, as follows: XxFor example, the historical carriage of the station could be illustrated by the submission of documents listing the cable system's channel lineup (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  X-community or is located close to the community in terms of mileage. xxCoverage 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"!0*(( " 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  Xv-concerning viewing in cable homes.zv X-#Xj\  P6G;9XP#э 8 FCC Rcd at 2977 (emphasis in original).z   XH-x6.` ` In adopting rules to implement this provision, the Commission indicated that changes requested should be considered on a communitybycommunity basis rather than on a countybycounty basis and that they should be treated as specific to particular stations rather  X -than applicable in common to all stations in the market.h y X--#Xj\  P6G;9XP#э 8 FCC Rcd at 2977 n.139. Viewership data cited herein is county data, rather than communityspecific data. However, absent evidence that such data is not fairly reflective of viewing in the actual communities in question, we accept such data as probative in cases of this type.h The rules further provide, in accordance with the requirements of the Act, that a station not be deleted from carriage during  X -the pendency of an market area change request.e  Xk-#Xj\  P6G;9XP#э 47 C.F.R. 76.59.e  X -x7.` ` 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 onethird 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  X-license is closest to the principal headend of the cable system.c  X!-#Xj\  P6G;9XP#э 8 FCC Rcd at 2981.c 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 mustcarry 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. " G 0*(("Ԍ # MARKET FACTS AND ARGUMENTS OF THE PARTIES TP  X-x8.` ` The communities here in question are all in Palm Beach County, Florida, which is located within the West Palm BeachFort PierceVero Beach, Florida ADI. Palm Beach County is adjacent to the Miami ADI, just to its north. The communities in question are located across Palm Beach County, and range from approximately 41 to 81 miles from Miami.  X -x9.` ` In support of its petition, WBFSTV argues that it is currently carried on cable systems serving the communities in question, and that it has been carried on most of these systems for at least five years, since WBFSTV began broadcasting Miami Heat basketball games. WBFSTV states that it "is the only full power station currently carrying the Miami Heat professional basketball team in Palm Beach County," and that the station also broadcasts 52 Florida Marlins baseball games, all of which sports broadcasts are of great interest to residents of the communities in question. Many area cable subscribers would lose access to these games if WBFSTV is not carried, the station claims, and others would have to subscribe to an additional tier to access the games. WBFSTV also states that it broadcasts a public affairs program on Sunday nights that covers southern Florida events of interest to area  X4-residents, and notes that its signal extends well into Palm Beach County.9 4 X-#Xj\  P6G;9XP#э WBFSTV specifically notes that its predicted Grade B contour encompasses eight of the twelve communities in question: Atlantis, Boca Raton, Boynton Beach, Delray Beach, Highland Beach, Palm Springs, Village of Golf, and Wellington.9 WBFSTV further  X-states that it is significantly viewed in the communities in question overtheair,7 NK X-#Xj\  P6G;9XP#э For an independent station to be deemed to be significantly viewed in a community or a county, it must achieve in noncable homes a share of viewing hours of at least 2 percent (total week hours) and a net weekly circulation of at least 5 percent. 47 C.F.R. 76.5(i).  X-WBFSTV has been found by the Commission to be significantly viewed in, inter alia, Boca  X-Raton, Boynton Beach, and Delray Beach in Channel 33, Inc. (WBFSTV), Cable Television Actions Report No. 3037, Mimeo No. 5744 (released July 14, 1986), and in Palm Beach  X-County as a whole in Channel 33, Inc. (WBFSTV), Cable Television Actions Report No. 3062, Mimeo No. 937 (released December 4, 1986).7 and is likely even more heavily viewed in cable homes.  X-x10.` ` In opposition to WBFSTV's petition, WFLX contends that the petition "is based on little more than speculation and surmise," and the only allegation in the petition supported by affidavit is WBFSTV's fiveyear record of carriage on area cable systems. WFLX argues that WBFSTV has made no factual showing at all concerning service to the communities in question, and indeed concedes that its Grade B contour fails to encompass four of the twelve communities. Additionally, WFLX states, WBFSTV concedes that other"ea 0*((" stations entitled to mandatory carriage in the communities in question provide news and other local programming directed toward the communities in question. Finally, WFLX notes that WBFSTV does not provide any evidence at all of viewing patterns in cable homes in the communities, but simply offers unsupported speculation.  X-x11.` ` WPEC argues in opposition that WBFSTV's carriage outside of its market on West Palm Beach area cable systems is, as the station admits, due to its carriage of "sports programming for teams that are local to the Miami market," and that this does not make WBFSTV a local station in the West Palm Beach area. Moreover, notes WPEC, Miami Heat and Florida Marlins games are available through Station WPTV (NBC, Channel 5), West Palm Beach, Florida; Low Power Television Station W19AQ (Channel 19), Palm Beach, Florida; and the Sunshine Network. WPEC states that WBFSTV fails to provide a Grade B signal to fully twothirds of Palm Beach County, and that the station fails to demonstrate that it carries any news or local programming serving the communities in question at all. WPEC finally submits Arbitron data for Palm Beach County homes (cable and noncable combined) that shows that Arbitron measures northern and southern Palm Beach County separately  X-today,  X -#Xj\  P6G;9XP#э WPEC also submits a letter from Arbitron which reveals that the communities of Atlantis, Belle Glade, Jupiter, Palm Springs, Wellington, and West Palm Beach are assigned by Arbitron to Palm Beach North, while the communities of Boca Raton, Boynton Beach, Delray Beach, Highland Beach, Pahokee, and Village of Golf are assigned by Arbitron to Palm Beach South. and notes that this data shows that WBFSTV today just meets the criteria for being significantly viewed in Palm Beach County South (2 percent share and 23 percent net weekly circulation), but fails to do so in Palm Beach County North (1 percent share and 9 percent net weekly circulation).  X-x12.` ` WTVX argues in opposition that as WBFSTV provides no local news coverage to the communities in question and as most (if not all) of the sports programming offered by the station is already available to cable subscribers in the communities, denial of WBFSTV's petition will cause no disruption to subscribers, and no public interest would be served by granting the petition. Moreover, argues WTVX, carriage of a particular sports franchise's games should not be grounds to modify an station's ADI, nor did Congress intend to do so. WBFSTV fails to provide any local coverage of news and events of interest to the communities in question, WTVX contends, whereas WTVX and other area stations do. Nor, WTVX asserts, does WBFSTV demonstrate that residents of the communities in question rely on the station's programming.  X -x13.` ` West Boca notes that while the 1992 Cable Act does cite "carriage or coverage of sporting . . . events of interest to the community" as a factor to consider in evaluating  X-market modification requests,u  X&-#Xj\  P6G;9XP#э 47 U.S.C. 534(h)(1)(C)(ii)(III).u this is not the sole factor to evaluate. West Boca argues that" 0*((" WBFSTV's entire petition is based upon the station's carriage of certain sporting events, and that the station fails to demonstrate any news, public affairs, or other local programming of specific interest to the communities in question. In contrast, notes West Boca, such local programming is available on other stations entitled to carriage in the communities in question, and the sports programming cited by WBFSTV is also available on other cable channels in the communities. West Boca argues that WBFSTV provides no current data concerning its viewership in the communities in question, and that the station does not demonstrate why its history of carriage justifies the relief it requests.  X1-x14.` ` In reply, WBFSTV argues that it may justify its petition however it wishes. In any event, claims WBFSTV, its sports broadcastswhich now also include Florida Panthers hockey gamesare of interest to and do constitute local service to the communities in question. This programming is unique to the communities in question, WBFSTV maintains, because W19AQ obtains its feed from WBFSTV, as does WPTV, and the Sunshine Network airs games not available on WBFSTV. That WBFSTV is significantly viewed in Palm Beach County is settled, the station contends, and since acquiring that status it has increased its cable carriage from merely one of the cable systems serving the communities in question in 1986 to nine cable systems today. WBFSTV notes that it already has received a notification from Cablevision Industries, operator of a cable system serving, inter alia, Belle Glade and Pahokee, of the system's intent to drop WBFSTV, and hence the station's requested relief is necessary.  ANALYSIS AND DECISION TP  X-x15.` ` We shall grant WBFSTV's petition only in part. WBFSTV does demonstrate a history of carriage on the cable systems serving the communities in question. With respect to the second statutory factor, however, WBFSTV concedes that it covers only eight of the  Xe-communities with a Grade B or better contour,e X-#Xj\  P6G;9XP#э WBFSTV in fact places a Grade A contour over Boca Raton, Delray Beach, and Highland Beach. most of which are located in that area of the county designated by Arbitron as Palm Beach County South. At the same time, the station has also shown that it provides programming coverage of interest to the communities in question. No opponent has suggested or provided any evidence that viewers in the communities in question do not find WBFSTV's sports programming of interest or pertinence to them. Rather, opponents contend that such programming should not count as satisfying the  X-statutory factor of "coverage or other local service to such communit[ies] . . . ,"tb X$-#Xj\  P6G;9XP#э 47 U.S.C. 534(h)(1)(C)(ii)(II).t and that such programming is available from other stations carried in any event. We disagree. Congress has indicated the relevance of sports programming to our analyses of petitions such"!0*(( "  X-as WBFSTV's. Xy-#Xj\  P6G;9XP#э See 47 U.S.C. 534(h)(1)(C)(ii)(III). With respect to the third factorwhether other stations entitled to carriage provide local coveragewe do not believe that Congress intended the third criterion to operate as a bar to a station's ADI claim whenever other stations could 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. 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 WBFSTV, this enhancement factor would not appear applicable.  X -x16.` ` With respect to the fourth statutory factor, we recognize that WBFSTV's viewership levels are not inherently compelling in the abstract. Nevertheless, WBFSTV garners equal or higher viewership than other independent stations licensed to communities in the Miami ADI in both cable and noncable homes, including Television Broadcast Station WDZL (Ind., Channel 39), Miami, Florida, also carried by West Boca. In Palm Beach County South, WBFSTV achieves a share of 1 and a net weekly circulation of 21 in cable homes, and a share of 2 and a net weekly circulation of 28 in noncable homes. WDZL achieves a share of 1 and a net weekly circulation of 21 in cable homes, and a share of 1 and a net weekly circulation of 24 in noncable homes. West Boca has not demonstrated why WBFSTV should be treated differently from WDZL and other Miami ADI stations carried on the system. In contrast, in Palm Beach County North, WBFSTV achieves rather less viewership, garnering a share of 1 and a net weekly circulation of 10 in cable homes, and a share of 1 and a net weekly circulation of 8 in noncable homes.  X-x17.` ` In addition to our analysis of the four statutory factors, we note that WBFSTV's petition seeks to include within the station's Miami ADI the city of West Palm Beach, Florida (as well as neighboring communities), a core community of the West Palm BeachFort PierceVero Beach ADI. In granting the Commission authority to modify market areas "to  X|-better effectuate the purposes of [the statute],"o|{ X-#Xj\  P6G;9XP#э 47 U.S.C. 534(h)(1)(C)(i).o we do not believe that Congress in the 1992 Cable Act intended for us to alter the basic structure of ADI markets themselves. In particular, we do not believe that the authority given to us by the 1992 Cable Act should generally be used to modify one ADI to include within it a core community of another ADI. This is especially true where, as in the instant case, the core community and its neighboring communities are located beyond the predicted Grade B contour of the requesting station, and the station garners significantly less viewing in these communities than it does in communities located nearer to the station, within its predicted Grade B contour. Such a modification does not simply promote "Congress' objective to ensure that television stations be carried in the  X!-areas which they serve and form their economic market,"!, X'-#Xj\  P6G;9XP#э H.R. Rep. No. 628, 102d Cong., 2d Sess. 97 (1992). but in fact modifies the basic"!0*(( " nature and competitive relationships within the neighboring market. This would not, we believe, "better effectuate the purposes of" the 1992 Cable Act. In view of the totality of the circumstances presented to us, therefore, we find that WBFSTV has sufficiently justified its petition only with respect to the communities of Atlantis, Boca Raton, Boynton Beach, Delray Beach, Highland Beach, Pahokee, Village of Golf, and Wellington, Florida.  Xv-x18.` ` Accordingly, for purposes of determining mandatory signal carriage obligations, we shall consider the communities of Atlantis, Boca Raton, Boynton Beach, Delray Beach, Highland Beach, Pahokee, Village of Golf, and Wellington, Florida, to be part of the Miami, Florida ADI with respect to WBFSTV, as well as within the West Palm BeachFort PierceVero Beach, Florida 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. ?ORDER TP  Xb-x19.` ` In view of the foregoing, we find that grant of WBFSTV's petition is in the public interest to the extent indicated at paragraph 18, supra.  X-x20.` ` Accordingly, IT IS ORDERED, pursuant to 614 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 June 1, 1993 by Channel 33, Inc. IS GRANTED to the extent indicated at paragraph 18, supra, and in all other respects IS DENIED. This change shall be effective in accordance with the following schedule: WBFSTV 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 affected cable systems shall come into compliance with the applicable rules within 60 days of the above notice.  X7-x20.` ` This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules. x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@William H. Johnson x` `  hh@Deputy Chief, Cable Services Bureau