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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 re: ) ) Time Warner Entertainment ) CSR-4876-A Fayetteville and Southern Pines, NC ) ) For Modification of Television ) Broadcast Station WRMY's ADI ) MEMORANDUM OPINION AND ORDER Adopted: April 18, 1997 Released: April 22, 1997 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Time Warner Entertainment--Advance/Newhouse Partnership, d/b/a Time Warner Cable ("Time"), operator of cable television systems serving various communities in North Carolina, has filed a "Petition For Special Relief." The petition seeks to delete the communities served by Time's Fayetteville and Southern Pines systems from the Raleigh-Durham, North Carolina area of dominant influence (or "ADI"), insofar as mandatory carriage of Television Broadcast Station WRMY (Ind., Channel 47), Rocky Mount, North Carolina, is concerned. Station WRMY's licensee, Roberts Broadcasting Company of Raleigh-Durham, L.P., has filed an "Opposition To Petition For Special Relief," to which Time has replied. 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)(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. 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 a market change request. MARKET FACTS AND PARTIES' ARGUMENTS 8. WRMY is licensed to serve Rocky Mount, North Carolina, which is part of the Raleigh-Durham, North Carolina ADI. Although Parkton, in Robeson County is currently assigned to the Wilmington, North Carolina ADI, where WRMY has no mandatory carriage rights, the communities in the remaining three counties, Cumberland, Moore, and Sampson, are all presently assigned to the same ADI as is WRMY: the Raleigh-Durham, North Carolina ADI. Both Sampson and Cumberland Counties are located on the southern border of the Raleigh-Durham ADI, while the County of Moore is on the southwestern border of the Raleigh-Durham ADI. However, WRMY's city of license, Rocky Mount, is located diagonally across the ADI, in Edgecombe County, on the northeastern border of the Raleigh-Durham ADI. In addition, Rocky Mount is located over eighty miles from the Fayetteville cable system and over one hundred miles from the Southern Pines cable system. According to Nielsen's 1995 County/Coverage Study, WRMY had no reported viewing share, either off-air or on cable in any of the above counties. Although the station's Grade B contour covers most of Edgecombe County, as well as portions of the two adjacent Counties, Nash and Wilson, it covers no portion of Cumberland, Moore, or Sampson Counties. 9. According to Time, neither its Fayetteville nor its Southern Pines system has ever carried WRMY during the station's seven year operational history. Time adds that it does not receive a good quality signal from WRMY to distribute to its subscribers, and that WRMY generally broadcasts program-length presentations by national and local community organizations and businesses with no specific ties to any of the specified cable communities. According to Time, WRMY's city of license, Rocky Mount, is located about 88 miles from Fayetteville and about 103 miles from Southern Pines. The closest that its Grade B gets to any of the cable communities is approximately 22 miles from Fayetteville; and about 30 miles from Southern Pines. Time contends that its subscribers already receive stations from Fayetteville and from other North Carolina cities, including the State Capitol, Raleigh, which supply them with ". . . a wide range of news, sports, public affairs, and public service coverage designed to meet their specific needs and interests." Time adds that WRMY is not even listed in the cable communities' local TV Guide or in the Fayetteville Observer-Times television listing. Time notes that the station had no reported off-air viewing in the Raleigh-Durham television market, according to Nielsen's market data for July 11 to August 7, 1996. Finally, Time contends that deleting the designated communities from WRMY's ADI for mandatory carriage purposes will make the ADI more congruous with market realities. 10. In response, WRMY states that it is North Carolina's first 100% minority owned and operated television broadcast station, and that until July 1996, it was a low power station with specialty programming. Therefore, WRMY contends that it is not be surprising that local cable systems have no history of carrying it. WRMY notes, however, that it broadcasts six hours weekly of children's educational programming, and five and one-half hours weekly of public affairs programming. WRMY adds that it transmits one-half hour weekly of religious programming, as well as other programming of particular interest to the designated cable communities, and home shopping programming, which the Commission has previously held serves the public interest by providing alternative access to goods for shoppers who either cannot or do not wish to purchase them in the traditional manner. At the same time, the Commission has also recognized that stations with specialized programming often receive low audience ratings, according to WRMY, which might also be attributable to its being a low power station until recently and its lack of carriage by local cable systems. WRMY argues that the viewing factor, therefore, should receive little weight. Moreover, WRMY contends that the question of whether or not other stations in the market also provide local coverage is irrelevant because this factor is only used to bolster a station's claim to inclusion within an ADI, it is not used to bolster a cable operator's claim for deletion of a station from an ADI, citing Time Warner Cable and Nationwide Communications, Inc. The only relevant issue, according to WRMY, is whether or not it is providing coverage, or other local service, to the specified cable communities. Citing a program called "Reflections on Fayetteville," which WRMY states is in production, the station maintains that it is providing local service, despite its admitted lack of a Grade B or better contour over the relevant cable communities. WRMY adds that the Commission has previously held that a station's market may extend beyond its Grade B contour, citing a number of decisions, including Greenville Television, Inc., Idaho Independent Television, and Time Warner Cable. WRMY concludes that, since Time cannot proffer particularized and persuasive evidence that the above cable communities are not part of WRMY's market, Time's waiver request must be denied. 11. In reply, Time notes that WRMY has been broadcasting since July 1989 and still has not been carried by Time in the specified cable communities where it also lacks virtually any off-air viewing. Time adds that WRMY is currently operated by Paxson Communications Corporation, under an agreement with the station's licensee, Roberts Broadcasting Company, and that it never was truly a low power station under the Commission's rules, it was just operated as an under powered television broadcast facility, which still fails to place a Grade B contour over any portion of Time's systems. Time contends that in each of the cases cited by WRMY with respect to the issue of historic non-carriage of "new" or home shopping channels, the cable communities involved were each located within the station's Grade B or better contour, which the Commission considers makes the station "local" to the communities involved. Finally, Time maintains that WRMY's programming is only of general interest, including its minority oriented productions, and that none of it is specifically relevant to the cable communities Time serves. Time contends that, although the Commission has recognized the potential diversity benefits provided by specialty stations to niche audiences, it also considers the lack of audience for such a station's programming to be an indicator of the scope of the station's market. Citing the Bureau's prior decisions in TCI of Northern New Jersey, Inc.; and A-R Cable Services, Inc., Time contends that when the station concerned provides no local service to the cable communities, such as in the present case, the Commission will consider evidence of local programming by other stations in deletion cases. According to Time, it has shown the availability of more focused local programming from other stations carried by Time in the cable communities, and this factor is entitled to meaningful consideration, particularly in view of the 103 mile distance between Rocky Mount and Time's Southern Pines system, and the 88 mile distance between it and Time's Fayetteville system. ANALYSIS AND DISCUSSION 12. We will grant Time's request. Based on the geographic and other statutory factors, we believe that the designated communities are sufficiently removed from WRMY that they ought not to be deemed part of the station's market for mandatory carriage purposes. Initially, we note that WRMY has never been carried on Time's systems. WRMY has been broadcasting for a number of years, but nevertheless lacks historic carriage in all the cable communities. While the evidence relating to this statutory factor does weigh in favor of excluding the cable systems' communities from WRMY's market, it is not outcome determinative by itself. 13. Also to be weighed in the balance is the extent to which WRMY provides local service to the communities. A station may demonstrate this by broadcasting local programming, which has a distinct nexus to the cable community. In this instance, however, while WRMY broadcasts programming directed to minority audiences, as well as to the general audience in the Raleigh-Durham ADI, the station has not cited a single broadcast of an event or issue of particular interest or concern to any of the designated cable communities in Cumberland, Moore, or Sampson Counties, aside from the one program it states is in production called "Reflections on Fayetteville." In addition, local service, as measured by the station's service contours may also be a decisive factor. The Commission recognized this approach in its Report and Order in MM Docket 92-259, when it stated that "to show that the station provides coverage or other local service to the cable communities, 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." Reviewing the facts at hand, however, we find that WRMY places a Grade B contour over none of the designated communities or over any of the counties noted, unlike the situation either in Time Warner Cable or in Nationwide Communications, Inc. 14. Additionally, WRMY does not appear in Nielsen's 1995 County/Coverage Study for Cumberland, Moore, or Sampson Counties, and it has no reported viewership either off-air or on cable in any of the specified communities, all of which are located between eighty and one hundred miles from the station's city of license, Rocky Mount. Finally, where a cable operator is seeking to delete a station's mandatory carriage rights in certain communities within its ADI, and it is clear that the station is not providing local service to those 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. Here, the other local commercial and noncommercial stations provide subscribers residing in the cable communities with targeted local news casts and public affairs programming. Coverage by other stations in the communities specified in Moore, Cumberland and Sampson does weigh in favor of Time's request. 15. The distances involved in this situation, together with the lack of Grade B or better contours, further attenuates the local ties that the station might otherwise have to the cable communities and helps explain why the station's viewership is too low to be reported in the counties indicated. We conclude, therefore, that lack of historical carriage and the dearth of audience is of evidentiary significance when linked with other information regarding the market and the particular distances involved. In these circumstances, we cannot discount the absence of viewership as an indication of the scope of WRMY's market area. 16. In view of the above, Time's request is granted with respect to the designated communities in Cumberland, Moore, and Sampson Counties. ORDERING CLAUSES 17. 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 "Petition For Special Relief" (CSR-4876-A) filed on December 6, 1996, by Time Warner Entertainment--Advance/Newhouse Partnership, d/b/a Time Warner Cable IS GRANTED. 18. 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