******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. 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 re: ) ) Time Warner Entertainment Co., L.P.) CSR-4868-A ) For Modification of the ADI of ) Television Broadcast Station WUNI,) Worcester, Massachusetts ) MEMORANDUM OPINION AND ORDER Adopted: March 11, 1997 Released: March 14, 1997 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Time Warner Entertainment Company, L.P. ("Time Warner") filed the above-captioned petition for special relief seeking to modify the Boston, Massachusetts Area of Dominant Influence (ADI) relative to Television Broadcast Station WUNI (Ch. 27, Univision Spanish language network affiliate), Worcester, Massachusetts. Specifically, Time Warner requests that WUNI be excluded, for purposes of the cable television mandatory broadcast signal carriage rules, from two cable systems it operates in New Hampshire and Vermont. This 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 market areas. Section 614(h)(l)(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 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 new 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 in 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 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 demon- strated 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. As for deletions of communities from a station's market, the legislative history of this provision indicates that: The provisions of [this subsection] reflect a recognition that the Commission may conclude that a community within a station's ADI may be so far removed from the station that it cannot be deemed part of the station's market. It is not the Committee's intention that these provisions be used by cable systems to manipulate their carriage obligations to avoid compliance with the objectives of this section. Further, this section is not intended to permit a cable system to discriminate among several stations licensed to the same community. Unless a cable system can point to particularized evidence that its community is not part of one station's market, it should not be permitted to single out individual stations serving the same area and request that the cable system's community be deleted from the station's television market. 7. In adopting rules to implement this provision, the Commission indicated that requested changes 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. MARKET FACTS AND ARGUMENTS OF THE PARTIES 8. The communities here in question are located in Cheshire County, New Hampshire and Windham County, Vermont and are part of the Boston, Massachusetts ADI. Worcester, Massachusetts, the city of license of WUNI is also a part of the same ADI. 9. In support of its petition, Time Warner states that WUNI has never been carried on its systems, despite having been on the air since 1970. Time Warner also states that, except for one small area of the community of Winchester, New Hampshire, none of communities fall within WUNI's Grade B contour. Time Warner argues that despite a small portion of its systems falling within WUNI's Grade B contour, deletion of the signal is still appropriate since the station, provides no programming of specific local interest or import for Cheshire and Windham County residents. While Time Warner admits that WUNI's programming may have general appeal to a segment of the Worcester, Massachusetts residents, it maintains that such a specialized format does not serve the needs of its subscribers, the majority of whom are not Hispanic. In any event, Time Warner asserts that its subscribers are provided with extensive and more focused coverage of local news and events through the local stations it currently carries. Time Warner also argues that WUNI does not achieve any measurable viewing in either Cheshire or Windham County and is not listed in the New Hampshire edition of TV Guide. Finally, Time Warner points out that WUNI is geographically distant from its cable systems with Winchester, New Hampshire, the closest community, at 46 miles away and Bellows Falls, Vermont, the farthest, at 68 miles. Time Warner argues that these distances approximate recent Commission decisions in which requests for market modification to exclude particular stations were granted. DISCUSSION 10. Based on the four statutory and other relevant factors, including in particular the lack of opposition from the station involved, Time Warner's request to delete the referenced cable communities from WUNI's ADI for the purposes of the broadcast carriage rules will be granted. WUNI began operation in 1970. Despite being on-the-air for almost thirty years, it has no history of carriage on Time Warner's systems. Although we note that WUNI's predicted Grade B contour partially encompasses one of the communities served by Time Warner, the majority of the systems appear to fall outside this contour. Moreover, the cable communities in question are, on average, 59 miles away from Worcester, Massachusetts, the city of license site of the station. 11. We also believe that Time Warner's carriage of other local television stations provides support for the action requested. Where a cable operator is seeking to delete a station's mandatory carriage rights in certain communities, the issue of local coverage by other stations becomes a factor to which we will give greater weight than in cases where a party is seeking to add communities. In this case there are several television stations carried by Time Warner's system, such as WMUR-TV in Manchester, New Hampshire and WNNE-TV in Hartford, Vermont, which have a closer nexus to the communities herein. These market facts, coupled with the distance between the cable communities and WUNI, supports Time Warner's arguments under the third factor. 12. Time Warner also shows that WUNI has no audience in Cheshire and Windham Counties. Moreover, the A.C. Nielsen 1995 County/Coverage Survey for Cheshire and Windham Counties does not even list WUNI. Because WUNI is a specialized format station, audience data are not determinative, in and of themselves, of the relationship between the cable communities and the market of the television station, nor should their absence permit a cable operator to undermine the objectives of the mandatory carriage requirement. Here, however, we conclude that the dearth of viewership is of evidentiary significance when tied with the lack of both historical carriage and minimal Grade B coverage. In these circumstances, we cannot discount the absence of viewership as an indicator of the scope of its market area. ORDERING CLAUSES 13. 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-4868-A) filed on behalf of Time Warner Entertainment Company, L.P. IS GRANTED. 14. 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