******************************************************** 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: ) ) TV Alabama, Inc. and RKZ Television, ) CSR-4942-A Inc. ) ) For Modification of the ADI of Stations) WCFT-TV, Tuscaloosa, Alabama, and ) WJSU-TV, Anniston, Alabama ) MEMORANDUM OPINION AND ORDER Adopted: July 7, 1997 Released: July 9, 1997 By the Deputy, Chief. Cable Services Bureau: INTRODUCTION 1. TV Alabama, Inc., licensee of Station WCFT-TV (Channel 33), Tuscaloosa, Alabama, and RKZ Television, Inc., licensee of Station WJSU-TV (Channel 40), Anniston, Alabama (hereinafter "Petitioners"), have filed the captioned petition which seeks to include various communities located in the Alabama counties of Marion, Walker, Winston, Jefferson, Shelby, Chilton, Cullman, Blount, St. Clair, Talladega, Coosa, Clay, Cleburne, Etowah and Cherokee, within the "Area of Dominant Influence" of Stations WCFT-TV and WJSU-TV. Oppositions to this petition were filed on behalf of Fox Television Stations, Inc., licensee of Station WBRC-TV (FOX, Channel 6), WTTO Licensee, Inc., licensee of Television Broadcast Station WTTO (Ind., Channel 21), and Media General Broadcasting of Birmingham, Inc., licensee of Television Broadcast Station WBMG (CBS, Channel 42), all Birmingham, Alabama. Petitioners have filed a consolidated reply. 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, a commercial television broadcast station is 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 No. 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. 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 Act, that a station not be deleted from carriage during the pendency of an ADI change request. MARKET FACTS AND PETITIONER'S ARGUMENTS 7. WCFT-TV is located within the Tuscaloosa, Alabama ADI, while WJSU-TV is located in the Anniston, Alabama ADI. The communities here in question are located in the Birmingham, Alabama ADI. 8. In support of its request, Petitioners argue that the current ADI designations of WCFT-TV and WJSU-TV do not reflect the marketplace conditions of the Birmingham area and that failure to include the instant communities within the stations' markets would be severely disruptive to the cable subscribers in those communities. Petitioners point out that WCFT-TV and WJSU-TV together (along with WBMA-LP) provide the only over-the-air ABC network service to the communities since the Birmingham ADI has not had a separate ABC-affiliated station assigned to it since September 1, 1996. Petitioners argue that a denial of its request, therefore, could deprive the communities' residents of local ABC service. Petitioners state that since WCFT-TV and WJSU-TV began broadcasting ABC programming, the focus of the stations' coverage of local news and events has been adjusted to reflect their status as the Birmingham area ABC affiliate. Indeed, Petitioners point out that: a) WCFT-TV has established a primary production studio in Birmingham which covers news and local events in Birmingham as well as Tuscaloosa and Anniston; b) WCFT-TV and WJSU-TV provide viewers with daily news programs covering news, events, sports and weather in the communities; and c) both stations' daily news programs include regular, in-depth stories which are of particular interest to residents of the communities. After a recently-completed modification of WCFT-TV's facilities resulting in an expansion of its coverage area, Petitioners maintain that all of the communities requested to be included within WCFT-TV's market are encompassed by that station's Grade B contour and virtually all are within its Grade A contour. While neither the current Grade A or Grade B contours of WJSU-TV encompass all of the communities requested to be included within WJSU-TV's market, Petitioners indicate that, after completion of modifications to that station's facilities, all but one of these communities will be within WJSU-TV's Grade B contour and virtually all will be within its Grade A contour. While Petitioners admit that, due to their status as "distant" signals and the inherent copyright liability associated with their carriage, the stations cannot claim a long history of carriage in the communities, the stations' new role as ABC affiliates and their recent and/or expected expansion of service areas require their inclusion as must carry stations for the Birmingham communities. Petitioners maintain that the Commission has recognized that there are instances, such as here, where lack of historical carriage should not be accorded great weight. Finally, Petitioners argue that the stations' popularity is reflected in their viewership levels for the Birmingham area. They state that the November 1996 Nielsen ratings indicate that for the Monday-Sunday 6:00 a.m. to 2:00 a.m. period, the stations received an average 10.6% share of television households and a net weekly circulation of 63%. Petitioners maintain that these figures indicate that WCFT-TV and WJSU-TV are the third most popular stations in the Birmingham market and thus should be granted must carry status for the communities. 9. In opposition, WTTO argues that if Petitioners' request is granted WCFT-TV and WJSU- TV would be in direct competition with WTTO for advertising and viewership. It maintains that while Grade B coverage of WCFT-TV has allegedly been expanded, that of WJSU-TV is still uncompleted and it is uncertain whether WJSU-TV's expanded Grade B signal would indeed reach the requested communities. Since WJSU-TV's coverage currently only extends to the fringes of the Birmingham area, WTTO argues that WJSU-TV's request for modification should not be granted until such time as the station can show actual proof of its coverage. In addition, WTTO maintains that since WCFT-TV provides programming on WJSU-TV pursuant to a local marketing agreement, grant of the instant modification would, in essence, allow the stations to operate as one station serving the Birmingham communities. WTTO argues that WCFT-TV and WJSU-TV are attempting to circumvent the Commission's rules by changing their communities of license to Birmingham, without going through the proper channels, and thus expanding their markets. WTTO concludes that the Commission must not allow WCFT-TV and WJSU-TV to ignore their obligations to their respective communities of license, Tuscaloosa and Anniston, Alabama, and therefore Petitioners' request should be denied. 10. WBRC-TV argues in opposition that Petitioners fail to acknowledge, except in a footnote, that TV Alabama (licensee of WCFT-TV) already provides ABC programming over-the-air to Birmingham via low power station WBMA-LP. WBRC-TV states that, apparently, Petitioners are seeking to employ the modification process to accord WBMA-LP must carry rights to which it is not otherwise entitled. WBRC-TV maintains that, in essence, Petitioners would create a jury-rigged, 3-station simulcast network with must carry rights throughout the Tuscaloosa, Anniston and Birmingham DMAs. In any event, WBRC-TV states that Petitioners fail to meet the market modification criteria: a) Petitioners fail to distinguish between the service provided by WBMA-LP, WCFT-TV and WJSU-TV. b) A cursory review of their programming reveals scant evidence of service specifically to the communities herein. WBRC-TV notes that out of the 1,021 news stories cited by Petitioners, the great majority relate to matters of general or regional interest and not specifically to the Birmingham communities. Despite Petitioners' claims of expanded signal coverage, WBRC-TV argues that signal coverage alone is not dispositive of market modification requests and it would be inappropriate to grant Petitioners' request based on such claims when it is clear they provide little programming of local interest. c) Petitioners provide no evidence of their claim of extensive cable carriage and significant audience viewing. There is no breakdown of which systems carry WCFT-TV and WJSU-TV and which carry WBMA-LP. Indeed, given the case that carriage of either WCFT-TV or WJSU-TV would result in copyright liability, it is more likely that most Birmingham cable systems carry WBMA-LP as their ABC affiliate. Moreover, the ratings information provided makes it impossible to discern the actual viewing patterns of WCFT-TV and WJSU-TV. d) Petitioners claim that the Birmingham television stations fail to provide significant service to the communities is not worthy of serious consideration. WBRC-TV states that the nine market stations provide a plethora of news, community affairs, sports, weather and general entertainment programming specifically geared to the communities. e) Petitioners' claim to be "the only ABC local affiliate serving the Birmingham ADI" ignores the provision of ABC programming via WBMA-LP. Indeed, Nielsen survey information reports ratings only for WBMA-LP and not for WCFT-TV or WJSU-TV individually. WBRC-TV argues that apparently Petitioners seek to gain must carry status as the sole source of a network's programming when that network's offerings are already provided through a low power station in the heart of the market. 11. In its opposition, WBMG-TV states that it fully concurs with the arguments raised in WBRC-TV's opposition which amply demonstrated that Petitioners fail to satisfy the four-part statutory test for modification. In addition, WBMG-TV argues that Petitioners' request represents an improper attempt to circumvent the severe restrictions on the must carry rights of LPTV stations. It points out that because of Petitioners' current operating arrangements, WCFT-TV currently provides programming not only to its own ADI of Tuscaloosa, but also to the ADIs of Anniston and Birmingham as well. WBMG- TV maintains that if must carry rights are granted to WCFT-TV and WJSU-TV, Birmingham ADI cable systems would be forced to carry the same signal now delivered via WBMA-LP, a station which does not qualify for must carry status under the LPTV restrictions. Also, WBMG-TV states that although Petitioners lay claim to every county in the Birmingham ADI, the mere reception of a television signal does not satisfy the local coverage requirement. WBMG-TV argues that Petitioners have not met this factor because they provide only conclusory statements which are devoid of substance and detail regarding the amount of local coverage provided to the instant communities. 12. In a consolidated reply, Petitioners state that none of the objections raised by the opposing stations have merit and are mere half-hearted attempts to cloud the issues and inhibit competition in the Birmingham ADI. Petitioners point out that it is noteworthy that their request was not opposed by a single cable operator and that, with three exceptions, every cable system serving the Birmingham ADI already carries one of the stations pursuant to retransmission consent agreements. Petitioners maintain that their request is not a city of license modification as suggested by WTTO in its opposition. Petitioners state that their stations serve and will continue to serve their respective cities of license. In any event, Petitioners argue that whether or not their request is granted, WCFT-TV and WJSU-TV will continue to compete with Birmingham market stations. Petitioners state that out of the 121 communities requested to be added to WCFT-TV's market, 80 communities are encompassed by WCFT-TV's Grade A contour and 31 encompassed by its Grade B contour. Of the 32 communities requested to be added to WJSU- TV's market, Petitioners state that Grade A coverage is provided to 10 and Grade B coverage to 21. Moreover, despite the allegations in the oppositions, Petitioners argue that WCFT-TV and WJSU-TV provide extensive local coverage to the communities in question. First, the stations collectively provide Grade B or better service to all but 9 of the 153 communities herein and, of those 9 communities, WCFT- TV is carried in six of them. Petitioners state that the Commission has previously recognized that "Grade B coverage demonstrates service to cable communities and serves as a measure of a station's natural economic market." 13. In addition, Petitioners maintain that the fact that the stations rank third in the Birmingham DMA according to audience viewing results, clearly shows that WCFT-TV and WJSU-TV provide programming of local interest in the DMA. Indeed, Petitioners indicate that not only have the stations aired well over 2,000 stories in or relating to the various counties and communities since September 1996, but they also air two 30-minute local, public affairs programs which regularly cover local stories of interest throughout the communities. Also, the Petitioners argue that their stations are supported by over 30 local advertisers located in the Birmingham metro area of Jefferson, Shelby, Blount and Saint Clair Counties and over 50 local advertisers interested in not only reaching viewers in Anniston and Tuscaloosa, but Birmingham as well. Further, Petitioners state that the fact that Nielsen reports WCFT- TV and WJSU-TV's ratings combined as WBMA+ is merely an artifact of Nielsen's reporting service which lists the market's host station as the reportable entity even when that station simulcasts another station's programming. Petitioners argue that it is not an indication that the high ratings demonstrated in the petition are somehow attributable to WBMA-LP, when in a ratings report for WBMA-LP, separate and apart from WBMA+ produced by Nielsen, consistently produced negligible ratings across all day parts. Petitioners therefore maintain that WBMA-LP is not a factor in the competition for viewers in the Birmingham market. Finally, Petitioners argue that the fact that other stations serve the Birmingham market is irrelevant. They point out that the Cable Bureau has repeatedly ruled that "[w]e believe that Congress did not intend [this] criterion to be a bar to a station's ADI modification claim whenever other stations could also be shown to serve the communities at issue." ANALYSIS AND DECISION 14. We shall grant Petitioners' petition for market modification. The evidence the stations submit, evaluated pursuant to the four statutory and other relevant factors, persuades us that the communities herein are properly considered part of the stations' respective ADIs. With regard to the first statutory factor, we note that while neither WCFT-TV nor WJSU-TV has demonstrated a long history of carriage on the cable systems serving the communities in question they have shown that they are currently carried in the majority of the communities at issue pursuant to retransmission consent. Carriage in this context, while not of long duration, is probative as to the scope of the market involved and is convincing evidence that the station's programming is of particular interest to viewers. 15. Turning to the second statutory factor, we note that a station's local service to cable communities can be measured, among other ways, by the coverage of its Grade B contour. In this instance, WCFT-TV's grade B contour currently encompasses all but 8 of the 121 communities that it requests be added to its market. Two-thirds of those communities are also encompassed by its Grade A contour as well. Of the communities requested to be included in WJSU-TV's market, well over two-thirds are encompassed by that station's Grade B contour, while one-third are encompassed by its Grade A contour. After the completion of Petitioners' technical improvements, all the subject communities will be included within the grade B contour of one of the stations or located on its fringe. Additionally, the stations have introduced evidence of local advertisers purchasing advertising time on their stations which supports the allegation that the subject stations are part of the local market place. 16. With regard to the third statutory factor -- whether other stations eligible to be carried serve the communities in question -- in general, we do not believe that Congress intended this 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. 17. Turning to the fourth factor, the 1997 Nielsen data which WCFT-TV and WJSU-TV submit is somewhat confused by inclusion in some reports, of WMBA-LP (low power station) audience along with data for WCFT-TV and WJSU-TV and because it is ADI-wide in nature and does not demonstrate viewership in the individual communities at issue. Nevertheless, taking these factors into account, it does serve to buttress the station's contentions that they are the principal ABC affiliates serving the communities at issue and that they (not just WBMA-LP) have significant audiences in the communities involved. In this regard, we also note that none of the cable operators involved have filed an objection to the addition of the subject communities to the stations' market place. This is evidence of the fact that the subject stations provide a desired service to the relevant communities. 18. Finally, we find no support for the argument raised by the opposing parties that Petitioners' intention herein was to create either a 3-station simulcast network and/or circumvent the low power television restrictions with regard to WBMA-LP. Except for the overlap of one community (Talladega Springs), the communities requested for inclusion by both WCFT-TV and WJSU-TV are entirely separate. Indeed, only three of the 15 counties involved are listed for both stations. Clearly, instead of creating one unified station, WCFT-TV and WJSU-TV will be serving separate portions of the Birmingham ADI which lie closest to each individual station. Moreover, the grant of Petitioners' request in no way alters the must carry rights of WBMA-LP within the confines of the low power restrictions. In this regard we note that cable operators will not be required to carry both stations since under our rules cable operators are required only to carry the closest market affiliate. ORDERING CLAUSES 19. 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-4942-A) filed on behalf of TV Alabama, Inc. and RKZ Television, Inc. IS GRANTED. 20. 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 APPENDIX I I. Communities requested to be included within WCFT-TV's market: Marion County: Glen Allen*#+ Gu-Win#+ Weston+ Hamilton+ Winfield#+ Brilliant#+ Guin#+ Hackleburg+ Bear Creek+ Jefferson County: Cardiff#+ County Line#+ Hueytown#+ Midfield#+ Minor*#+ North Johns*#+ Pleasant Grove#+ Tarrant#+ Trafford#+ West Jefferson#+ Bradford#+ Leeds (2 headends)+ -- (80 % is also within Grade A) Morris#+ Sayre#+ Maytown#+ Mulga#+ Sylvan Springs#+ Gardendale#+ Adamsville#+ Brookside#+ Fultondale#+ Graysville#+ Pinson#+ Forrestdale#+ Mt. Olive#+ Trussville+ -- (90% is also within Grade A) Hoover#+ Birmingham#+ Roosevelt City#+ Brownville#+ Irondale#+ Lipscomb#+ Concord#+ Fairfield#+ Bessemer#+ Brighton#+ Vestavia Hills#+ Riverchase#+ Homewood#+ Center Point#+ Mountain Brook#+ McCalla#+ Bucksville#+ Warrier#+ Kimberly#+ Cullman County: Arab* Baileyton* Colony*#+ Garden City*+ Fairview* Hanceville*+ Holly Pond* South Vinemont*+ West Point*+ Good Hope+ Dodge City#+ St. Clair County: Argo+ Moody+ Odenville Margaret+ Ashville Springville+ Steele Walker County: Kansas#+ Nauvoo#+ Piney Woods#+ Curry#+ Oakman#+ Carbon Hill#+ Eldridge#+ Cordova#+ Parrish#+ Jasper#+ Sumiton#+ Dora#+ Sipsey#+ Empire#+ Shelby County: Birmingham Chelsea#+ Harpersville+ Inverness#+ Lake Purdy*#+ Leeds Meadow Brook*#+ Vincent+ Columbiana+ Wilsonville+ Montevallo#+ Alabaster#+ Pelham#+ Calera#+ Wilton#+ Indian Springs#+ Helena#+ Lay Lake+ Shelby+ Westover+ Sterrett+ Chilton County Clanton* Thorsby+ Jemison+ Winston County: Arley#+ Haleyville+ Double Springs#+ Lynn#+ Addison+ Talladega County: Talladega Springs Blount County: Cleveland+ Hayden#+ Nectar+ Smoke Rise#+ Locust Fork+ Snead Oneonta+ Highland Lake+ Rosa+ II. Communities requested to be within WJSU-TV's ADI: Etowah County: Mountainboro*+^ Sardis City*+^ Coosa County: Goodwater* ^ Rockford* ^ Cleburne County: Edwardsville*#+^ Fruithurst*#+^ Heflin*#+^ Ranburne+^ -- (15% is also within Grade A) Cherokee County: Gaylesville* Sand Rock*+ Centre+ Cedar Bluff+ Leesburg+ Talladega County: Gantts Quarry*^ Mignon* ^ Waldo*#+^ Talladega#+^ Talladega Springs^ Childersburg^ Bon Air^ Sylacauga^ Lincoln#+^ Kymulga+^ DeSota Springs+^ Logan Martin+^ Clay County:Ashland#+^ Lineville#+^ Blount County: Allgood+^ St. Clair County: Pell City#+^ Branchville+^ Ragland#+^ Odenville+^ *communities where stations not carried #communities within station's Grade A contour +communities within station's Grade B contour ^communities which will be within WJSU-TV's proposed Grade B contour Note: Although the communities listed in italics for WJSU-TV were not mentioned in the engineering report submitted by the station regarding Grade B coverage, it appears that these communities are within WJSU-TV's current Grade B contour as well.