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(1) (a) (i) 1) a)D )DDDFrf9q 2MXDKGK`IKKy.X80,X\  P6G;P7jC:,9Xj\  P6G;XP7nC:,|Xn4  pG;Xy.\80,T\4  pG;pDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDdddddd/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""served by Time's Fayetteville and Southern Pines systems from the RaleighDurham, North  x\Carolina area of dominant influence (or "ADI"), insofar as mandatory carriage of Television  xBroadcast Station WRMY (Ind., Channel 47), Rocky Mount, North Carolina, is concerned.  xStation WRMY's licensee, Roberts Broadcasting Company of RaleighDurham, L.P., has filed an "Opposition To Petition For Special Relief," to which Time has replied.  X- BACKGROUND   X- ` Px2.` ` Pursuant to  614 of the Communications Act and implementing rules adopted by  X- xthe Commission in its Report and Order in MM Docket "I   "I 92259,Ix yO$-ԍ8 FCC Rcd 2965, 29762977 (1993).I commercial television broadcast  xzstations are entitled to assert mandatory carriage rights on cable systems located within the  xLstation's market. A station's market for this purpose is its "area of dominant influence" or ADI"z,N(N(ZZ"  X- xas defined by the Arbitron audience research organization.* yOy- x.ԍSection 76.55(e) of the Commission's Rules provides that the ADIs to be used for purposes of the initial  {OA-implementation of the mandatory carriage rules are those published in Arbitron's 19911992 Television Market Guide.* An ADI is a geographic market  xdesignation that defines each television market exclusive of others, based on measured viewing  xjpatterns. Essentially, each county in the United States is allocated to a market based on which  xhomemarket stations receive a preponderance of total viewing hours in the county. For purposes  X-of this calculation, both overtheair and cable television viewing are included.$" yOw- xxԍBecause of the topography involved, certain counties are divided into more than one sampling unit. Also, in  xcertain circumstances, a station may have its home county assigned to an ADI even though it receives less than a  {O - xpreponderance of the audience in that county. For a more complete description of how counties are allocated, see  {O -Arbitron's Description of Methodology. x  Xv- ` x3.` ` 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:  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:  AXxthe Commission shall afford particular attention to the value of localism by taking into account such factors as   ` 7XxX` ` (I) whether the station, or other stations located in the same area,  ` 6have been historically carried on the cable system or systems within such community;x`  ` pXxX` ` (II) whether the television station provides coverage or other local service to such community; `  ` pXxX` ` (III) whether any other television station that is eligible to be carried by a  ` pcable system in such community in fulfillment of the requirements of this  ` psection provides news coverage of issues of concern to such community or  ` pprovides carriage or coverage of sporting and other events of interest to the community; and `  ` 6XxX` ` (IV) evidence of viewing patterns in cable and noncable households  ` within the areas served by the cable system or systems in such  X -community.  yO&-ԍCommunications Act of 1934, as amended, 614(h)(1)(C)(ii), 47 U.S.C. 534(h)(l)(C)(ii).x` " ,N(N(ZZ="Ԍ X-ԙx4.` ` 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  3cable 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  ` pXx` ` [This subsection] establishes certain criteria which the Commission shall  oconsider 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.Z  yO -ԍH.R. Rep. No. 628, 102d Cong., 2d Sess. 97 (1992).Z   Xy- ` "x5.` ` The Commission provided guidance in its Report and Order in MM Docket 92259,  Xd-supra, to aid decision making in these matters, as follows:  aXxFor example, the historical carriage of the station could be illustrated by the  X!- submission of documents listing the cable system's channel lineup (e.g., rate  2cards) 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  2is located close to the community in terms of mileage. "I   "I Coverage of news or other  programming of interest to the community could be demonstrated by program logs  or other descriptions of local program offerings. "I   "I The final factor concerns  X- nviewing 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  ncommunity basis for cable and noncable homes, and significantly viewed surveys  typically measure viewing only in noncable households, such surveys may need  X-to be supplemented with additional data concerning viewing in cable homes.QX yO#-ԍ8 FCC Rcd at 2977 (emphasis in original).Q   X - ` `x6. ` ` As for deletions of communities from a station's market, the legislative history of this provision indicates that: "",N(N(ZZ!"Ԍ  nXxThe 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. "I   "I 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  X1-be deleted from the station's television mar ket.^1 yO -ԍH.R. Rep. 102628, 102d Cong., 2d Sess. 9798 (1992). ^(# x  X - ` x7.` ` In adopting rules to implement this provision, the Commission indicated that  xrequested changes should be considered on a communitybycommunity basis rather than on a  xCountybyCounty basis, and that they should be treated as specific to particular stations rather  X - x-than applicable in common to all stations in the market. Z X yO- x,ԍ8 FCC Rcd at 2977 n.139. Viewership information cited herein is county data, rather than communityspecific  xZdata. Absent evidence that such data is not fairly reflective of viewing in the actual communities in question, we  {OW-accept such data as probative in cases of this type. See, e.g., RKZ Television, Inc., 8 FCC Rcd 8008, 8010 (1993). The rules further provide, in accordance  xwith the requirements of the 1992 Cable Act, that a station not be deleted from carriage during  X-the pendency of a market change request.< z yO-ԍ47 C.F.R. 76.59.<  Xb-,  MARKET FACTS AND PARTIES' ARGUMENTS ă   X4- ` Qx8.` ` WRMY is licensed to serve Rocky Mount, North Carolina, which is part of the  xRaleighDurham, North Carolina ADI. Although Parkton, in Robeson County is currently  x\assigned to the Wilmington, North Carolina ADI, where WRMY has no mandatory carriage  xyrights, the communities in the remaining three counties, Cumberland, Moore, and Sampson, are  xall presently assigned to the same ADI as is WRMY: the RaleighDurham, North Carolina ADI.  xBoth Sampson and Cumberland Counties are located on the southern border of the Raleigh xDurham ADI, while the County of Moore is on the southwestern border of the RaleighDurham  xADI. However, WRMY's city of license, Rocky Mount, is located diagonally across the ADI,  xzin Edgecombe County, on the northeastern border of the RaleighDurham ADI. In addition,  xRocky Mount is located over eighty miles from the Fayetteville cable system and over one  xhundred miles from the Southern Pines cable system. According to "I   "I Nielsen's 1995  X7- x-County/Coverage Study, WRMY had no reported viewing share, either offair or on cable in any  x>of the above counties. Although the station's Grade B contour covers most of Edgecombe  xCounty, as well as portions of the two adjacent Counties, Nash and Wilson, it covers no portion of Cumberland, Moore, or Sampson Counties. "  ,N(N(ZZ"Ԍ X- ` nx9.` ` According to Time, neither its Fayetteville nor its Southern Pines system has ever  x=carried WRMY during the station's seven year operational history. Time adds that it does not  x/receive a good quality signal from WRMY to distribute to its subscribers, and that WRMY  xgenerally broadcasts programlength presentations by national and local community organizations  xand businesses with no specific ties to any of the specified cable communities. According to  xTime, WRMY's city of license, Rocky Mount, is located about 88 miles from Fayetteville and  xabout 103 miles from Southern Pines. The closest that its Grade B gets to any of the cable  xcommunities is approximately 22 miles from Fayetteville; and about 30 miles from Southern  xPines. Time contends that its subscribers already receive stations from Fayetteville and from  xother North Carolina cities, including the State Capitol, Raleigh, which supply them with ". . .  xya wide range of news, sports, public affairs, and public service coverage designed to meet their  x<specific needs and interests." Time adds that WRMY is not even listed in the cable communities'  X - x\local TV Guide or in the Fayetteville ObserverTimes television listing. Time notes that the  xstation had no reported offair viewing in the RaleighDurham television market, according to  xNielsen's market data for July 11 to August 7, 1996. Finally, Time contends that deleting the  xdesignated communities from WRMY's ADI for mandatory carriage purposes will make the ADI  X-more congruous with market realities.   X{-  Xd- ` x10.` ` In response, WRMY states that it is North Carolina's first 100% minority owned  XM- xLand operated television broadcast station, XM yO- xԍWRMY also states that it will broadcast minorityoriented programming, including regular discussions with  xZmembers of the North Carolina Black Caucus, a children's program emphasizing global and cultural diversity, and a program hosted by an AfricanAmerican teen poet that features various young, positive role models. and that until July 1996, it was a low power station  xywith specialty programming. Therefore, WRMY contends that it is not be surprising that local  xZcable systems have no history of carrying it. WRMY notes, however, that it broadcasts six hours  xzweekly of children's educational programming, and five and onehalf hours weekly of public  xOaffairs programming. "I   "I WRMY adds that it transmits onehalf hour weekly of religious  xlprogramming, as well as other programming of particular interest to the designated cable  xzcommunities, and home shopping programming, which the Commission has previously held  xserves the public interest by providing alternative access to goods for shoppers who either cannot  xor do not wish to purchase them in the traditional manner. At the same time, the Commission  xhas also recognized that stations with specialized programming often receive low audience ratings,  x\according to WRMY, which might also be attributable to its being a low power station until  xyrecently and its lack of carriage by local cable systems. WRMY argues that the viewing factor,  xtherefore, should receive little weight. Moreover, WRMY contends that the question of whether  xor not other stations in the market also provide local coverage is irrelevant because this factor is  xonly used to bolster a station's claim to inclusion within an ADI, it is not used to bolster a cable  X- xoperator's claim for deletion of a station from an ADI, citing Time Warner Cable?  yO$-ԍ11 FCC Rcd 8047 (1996).? and  X- x<Nationwide Communications, Inc.@ x yO'-ԍ10 FCC Rcd 13050 (1995).@ The only relevant issue, according to WRMY, is whether or" ,N(N(ZZ"  xnot it is providing coverage, or other local service, to the specified cable communities. Citing  xa program called "Reflections on Fayetteville," which WRMY states is in production, the station  xmaintains that it is providing local service, despite its admitted lack of a Grade B or better  xcontour over the relevant cable communities. WRMY adds that the Commission has previously  xheld that a station's market may extend beyond its Grade B contour, citing a number of decisions,  X- xincluding Greenville Television, Inc.,? yO-ԍ10 FCC Rcd 6491 (1995).? Idaho Independent Television,OX yO-ԍDA 962013 (released December 5, 1996).O and Time Warner Cable.4 {O& -ԍSupra.4  xZWRMY concludes that, since Time cannot proffer particularized and persuasive evidence that the  xabove cable communities are not part of WRMY's market, Time's waiver request must be denied.  XJ-   X3- ` x11.` ` In reply, Time notes that WRMY has been broadcasting since July 1989 and still  xhas not been carried by Time in the specified cable communities where it also lacks virtually any  xoffair viewing. Time adds that WRMY is currently operated by Paxson Communications  xKCorporation, under an agreement with the station's licensee, Roberts Broadcasting Company, and  xthat it never was truly a low power station under the Commission's rules, it was just operated as  xjan under powered television broadcast facility, which still fails to place a Grade B contour over  xany portion of Time's systems. Time contends that in each of the cases cited by WRMY with  xrespect to the issue of historic noncarriage of "new" or home shopping channels, the cable  xcommunities involved were each located within the station's Grade B or better contour, which  xthe Commission considers makes the station "local" to the communities involved. Finally, Time  xmaintains that WRMY's programming is only of general interest, including its minority oriented  xproductions, and that none of it is specifically relevant to the cable communities Time serves.  xTime contends that, although the Commission has recognized the potential diversity benefits  xprovided by specialty stations to niche audiences, it also considers the lack of audience for such  xa station's programming to be an indicator of the scope of the station's market. Citing the  X- x.Bureau's prior decisions in TCI of Northern New Jersey, Inc.;Mz yO-ԍDA 97112 (released January 22, 1997)M and  AR Cable Services, Inc.,N  yO-ԍDA 962015 (released December 5, 1996)N  xTime contends that when the station concerned provides no local service to the cable  xcommunities, such as in the present case, the Commission will consider evidence of local  xxprogramming by other stations in deletion cases. According to Time, it has shown the availability  xof more focused local programming from other stations carried by Time in the cable  x.communities, and this factor is entitled to meaningful consideration, particularly in view of the  xk103 mile distance between Rocky Mount and Time's Southern Pines system, and the 88 mile  ;xAdistance between it and Time's Fayetteville system.  X$- "$,N(N(ZZ\"Ԍ X- "I  "I w ANALYSIS AND DISCUSSION ă  X- ` x12.` ` We will grant Time's request. Based on the geographic and other statutory  x[factors, we believe that the designated communities are sufficiently removed from WRMY that  x "I  "I they ought not to be deemed part of the station's market for mandatory carriage purposes.  x/Initially, we note that WRMY has never been carried on Time's systems. WRMY has been  xbroadcasting for a number of years, but nevertheless lacks historic carriage in all the cable  x]communities. While the evidence relating to this statutory factor does weigh in favor of  xexcluding the cable systems' communities from WRMY's market, it is not outcome determinative by itself. x  X - ` x13.` ` Also to be weighed in the balance is the extent to which WRMY provides local  xservice to the communities. A station may demonstrate this by broadcasting local programming,  xwhich has a distinct nexus to the cable community. In this instance, however, while WRMY  xbroadcasts programming directed to minority audiences, as well as to the general audience in the  x{RaleighDurham ADI, the station has not cited a single broadcast of an event or issue of  xparticular interest or concern to any of the designated cable communities in Cumberland, Moore,  xLor Sampson Counties, aside from the one program it states is in production called "Reflections  Xb- xon Fayetteville."Qb {O-ԍSee AR Cable Services, Inc, supra.Q In addition, local service, as measured by the station's service contours may  XK- xalso be a decisive factor. The Commission recognized this approach in its Report and Order in  xZMM Docket 92259, when it stated that "to show that the station provides coverage or other local  xservice to the cable communities, parties may demonstrate that the station places at least a Grade  x=B coverage contour over the cable community or is located close to the community in terms of  X- xmileage."GZ yO-ԍ8 FCC Rcd at 29762977. G Reviewing the facts at hand, however, we find that WRMY places a Grade B contour  xover none of the designated communities or over any of the counties noted, unlike the situation  X-either in Time Warner Cable; yO^-ԍ11 FCC Rcd at 8054.; or in Nationwide Communications, Inc.<z yO-ԍ10 FCC Rcd at 13053.<  X- ` x14.` ` Additionally, WRMY does not appear in Nielsen's 1995 County/Coverage Study  xfor Cumberland, Moore, or Sampson Counties, and it has no reported viewership either offair  xor on cable in any of the specified communities, all of which are located between eighty and one  XT- xhundred miles from the station's city of license, Rocky Mount.T  {O$- xZԍBy comparison, the communities denied addition to the ADI at issue in Idaho Independent Television, Inc.,  {O$-supra, also could not demonstrate historic carriage and had no reported offair or cable viewing. Finally, where a cable operator  X=- x[is seeking to delete a station's mandatory carriage rights in certain communities within its ADI,  xand it is clear that the station is not providing local service to those communities, the issue of"&f ,N(N(ZZ"  xlocal coverage by other stations becomes a factor to which we will give greater weight than in  x{cases where a party is seeking to add communities. Here, the other local commercial and  x<noncommercial stations provide subscribers residing in the cable communities with targeted local  X- xnews casts and public affairs programming. {O4-ԍSee Cablevision Systems Corporation, DA 97455 (released March 3, 1997); AR Cable Systems, Inc., supra.Ĝ Coverage by other stations in the communities  X-specified in Moore, Cumberland and Sampson does weigh in favor of Time's request.  Xv- ` x15.` ` The distances involved in this situation, together with the lack of Grade B or better  xcontours, further attenuates the local ties that the station might otherwise have to the cable  xMcommunities and helps explain why the station's viewership is too low to be reported in the  xcounties indicated. We conclude, therefore, that lack of historical carriage and the dearth of  X - xaudience is of evidentiary significance.Z Z {O% - xԍBy comparison, in the Greenville Television Inc. case, WXVT had been carried by the local cable system since  xNovember 1980, and it had a total viewing share of 8% and a net weekly circulation of 39%. 10 FCC Rcd at 649293. . when linked with other information regarding the market  xxand 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.  X - ` $x16.` ` In view of the above, Time's request is granted with respect to the designated  X -communities in Cumberland, Moore, and Sampson Counties. | yO- xԍAs we noted previously, Parkton, in Robeson County, is in the Wilmington ADI, not in the RaleighDurham ADI.  Xy-x  ORDERING CLAUSES  Xb-  XK- ` ~x17.` ` Accordingly, IT IS ORDERED, pursuant to 614(c) of the Communications Act  xof 1934, as amended, 47 U.S.C. 534 and 76.59 of the Commission's Rules (47 C.F.R. 76.59),  x.that the "Petition For Special Relief" (CSR4876A) filed on December 6, 1996, by Time Warner EntertainmentAdvance/Newhouse Partnership, d/b/a Time Warner Cable IS GRANTED.  X- ` x18.` ` This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules.  X-x` `  hh x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhWilliam H. Johnson  X -x` `  hhDeputy Chief, Cable Services Bureauxx