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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 ) In the Matter of the Petition of ) ) WNAL-TV, Inc. ) CSR 4827-A ) For Modification of Market of ) Station WNAL-TV, Gasden, AL ) MEMORANDUM OPINION AND ORDER Adopted: January 23, 1997 Released: January 30, 1997 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. WNAL-TV, Inc. ("WNAL-TV") filed the above-captioned petition, pursuant to Sections 76.7 and 76.59(a) of the Commission rules, requesting that the Commission modify the market of its television station WNAL-TV (Channel 44, Gasden Alabama) to include Anniston, Alabama, and the nearby communities of Hobson City, Jacksonville, Ohatchee, Oxford, Weaver, Fort McClellan, and Anniston Army Depot, Alabama ("the Communities") served by area cable systems for purposes of determining statutory must-carry rights. The petition is unopposed. BACKGROUND 2. Pursuant to Section 614 of the Communications Act of 1934, as amended by the Television Consumer Protection and Competition Act of 1992, 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. The Commission is also directed to consider changes in market areas. Section 614(h)(1)(C) further 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, Section 614(h)(1)(C)(ii) 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 Must Carry Order, 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 change request. 7. Adding communities to a station's market 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, and 3) 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 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, depending upon the circumstances involved, the addition of communities to a station's market may have the following consequences. It may guarantee that station's carriage in the subject communities. Should there be more must-carry stations that one-third of the system's channel capacity, it would provide the system operator with an expanded list of must-carry signals from which to choose. Should the station be a duplicating network station, it will determine which station has priority carriage in the subject communities added. MARKET FACTS AND ARGUMENT 8. WNAL-TV, a television station licensed to Gasden, Alabama, is located in the Birmingham, Alabama ADI, as defined in Arbitron's 1991-1992 Television ADI Market Guide. WNAL-TV petitions the Commission to modify the market of its television station to include the Communities served by area cable systems, for purposes of determining statutory must-carry rights. WNAL-TV asserts that, although the Communities are located in the Anniston, Alabama ADI, WNAL-TV should be entitled to mandatory carriage under the Commission's must-carry rules on cable systems in those communities. WNAL-TV stated that the station would, on September 1, 1996, become an affiliate of the CBS television network and that the station broadcasts programming that fulfills the needs and interests of Anniston and the Communities as well as those of Gasden, its city of license. 9. WNAL-TV asserts that the facts and circumstances it has presented show that the Communities should be included within its market, when considered under the four factors test set forth in Section 614(h)(1)(C)(ii) of the Communications Act. First, WNAL-TV stated that the Time Warner cable system serving the Communities is currently carrying the station. Secondly, WNAL- TV provided a station signal contour map, which shows that WNAL-TV provides a Grade A signal over each of the Communities. WNAL-TV further pointed out that none of the Communities is located over thirty miles from Gasden. Thirdly, WNAL-TV states that it serves as an advertising medium for businesses located in the Communities and often broadcasts public service announcements for events and institutions located in the Communities. 10. Fourth, WNAL-TV asserts that it has substantial viewership in the Communities. Such viewership is established, according to WNAL-TV, by the Nielson 1996 Calhoun County Coverage Study, which shows the station with an average share of four and a cume of 48. Finally, WNAL-TV states that Station WJSU-TV (Channel 40), which changed its network affiliation from CBS to ABC on September 1, 1996, is the only station licensed to Anniston. As a result, WNAL-TV would become the CBS affiliate located closest to the Communities. ANALYSIS AND DECISION 11. WNAL-TV has provided sufficient evidence to justify its market modification request and, accordingly, it will be granted. Considering the information provided for the record in light of the factors specified in Section 614(h)(1)(C)(ii) of the Communications Act, we are persuaded that WNAL-TV's television market should include the Communities. The subject Communities lie in close proximity to station WNAL-TV. Additionally WNAL-TV's signal is carried on the cable system serving each of the affected Communities. Further, the fact that WNAL-TV places a Grade A signal over each of the Communities is persuasive evidence that the station provides service to these communities. Importantly, too, WNAL-TV provides programming specifically designed to serve the interest and needs of the Communities. With an average audience share of four and a cume of 48, WNAL-TV has an established viewing audience in those Communities. We conclude that WNAL-TV has demonstrated that it is a local station to and serves the residents of the Communities. Accordingly, the market for station WNAL-TV will be modified to include the Communities for statutory must-carry purposes. ORDER 12. Accordingly, IT IS ORDERED, pursuant to Section 614(c) of the Communications Act of 1934, as amended, 47 U.S.C.  534, and Section 76.59 of the Commission's Rules, 47 C.F.R.  76.59, that the "Petition for Special Relief" (CSR-4827-A) filed by WNAL-TV, Inc. IS GRANTED. WNAL-TV, Inc. shall notify all cable systems serving the affected Communities in writing of its carriage and channel position elections, pursuant to 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. 13. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules, 47 C.F.R.  0.321. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau