Before the Federal Communications Commission Washington, D.C. 20554 In re: ) ) Horizon Broadcasting CorporationCSR-4984-A) ) For Modification of Station WJUE-TV's ADI ) MEMORANDUM OPINION AND ORDER Adopted: July 30, 1997Released: August 4, 1997 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1.Horizon Broadcasting Corporation, licensee of Station WJUE-TV (Channel 43), Battle Creek, Michigan, has filed a petition to add the Michigan communities of Lansing and East Lansing to WJUE-TV's area of dominant influence (or "ADI") insofar as mandatory carriage of the station is concerned. Continental Cablevision of Michigan, Inc. and United Cable Television of Mid-Michigan, Inc., operators of cable television systems serving Lansing and East Lansing, respectively (the "operators"), have filed a consolidated opposition to this petition, to which WJUE-TV 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, 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 THE PARTIES' ARGUMENTS 7.Lansing and East Lansing, Michigan are principally located in Ingham County, Michigan, but portions of Lansing also extend into Clinton County to the North and into Eaton County to the West. These two communities are in the Lansing, Michigan ADI, while WJUE-TV is presently assigned to the Grand Rapids-Kalamazoo-Battle Creek, Michigan ADI. Although Battle Creek is located approximately forty miles from Lansing, WJUE-TV places a City Grade contour over both Lansing and East Lansing because of the close proximity of its transmitter site to the subject communities. 8.In support of its petition, WJUE-TV notes that it began broadcasting only five months prior to filing the instant market modification petition, on October 10, 1996. WJUE-TV contends, therefore that, although it cannot demonstrate historic cable carriage, the Bureau has previously held that this factor is not given significant weight under these circumstances because doing so would prevent new stations from ever gaining carriage, citing Paragon Cable and ML Media Partners, L.P. Similarly, a new station such as WJUE-TV, has no information concerning audience ratings, which may take up to three years to establish, so the Bureau has previously found that ". . . it is appropriate to rely on other evidence of the station's local market to determine whether a particular community [or communities] should be added to its market." However, WJUE-TV also notes that, since it places a City Grade contour over both Lansing and East Lansing, the Bureau has previously determined that the presence of either a Grade A or a City Grade contour constitutes "compelling evidence that the [station] provides service" to the community. WJUE-TV adds that, because of its strong signal, it was chosen by the Michigan Emergency Alert System to provide their signal to the specified cable communities. In addition, WJUE-TV states that it airs religious programming 9 1/2 hours daily, and that its other programming, which consists primarily of home shopping infomercials, has been held to serve the public interest by providing ". . . an important service to viewers who either have difficulty obtaining or do not otherwise wish to purchase goods in a more traditional manner." Finally, WJUE-TV notes that it is trying to establish a relationship with Michigan State University in East Lansing aimed at creating local programming geared to the designated cable communities. 9.In response, the cable operators contend that WJUE-TV has failed to demonstrate that it adequately meets the criteria necessary for market modification. They add that granting WJUE-TV an ADI waiver solely because of the location of its transmitter and its resulting contour over Lansing and East Lansing would be "perverse." Because WJUE-TV sought to identify itself with Battle Creek, a decision to modify its ADI should at least require WJUE-TV to relinquish its mandatory carriage rights in the Grand Rapids-Kalamazoo-Battle Creek ADI, according to the operators. Citing the Bureau's prior decision in Cablevision of Monmouth, Inc., the cable operators add that WJUE-TV has failed to demonstrate both lack of historic carriage and any audience share in the specified cable communities which, when combined with coverage by other local stations, and ". . . the fact that WJUE-TV fails to provide significant local programming," altogether militate against affording the station mandatory carriage in Lansing and in East Lansing. The operators contend that, although home shopping and WJUE-TV's other programming may have some general interest, it does not constitute "local" coverage of the specified cable communities. The operators note that none of the local television program guides even list WJUE-TV. In addition, the operators contend that WJUE-TV failed to even address the third factor in considering ADI modification requests, but that as far as coverage by other local stations carried on the cable systems is concerned, there are four stations licensed to Lansing which provide ". . . extensive coverage of local news and sports events." According to United, it also transmits ten PEG channels, which provide religious programming, school activities, programming by the local government, and events from Michigan State University. Continental states that it carries six such channels, which provide programming from the University, a religious access channel, and several educational access channels. 10.In reply, WJUE-TV notes that the cable operators failed to cite any public policy reason or precedent for stripping the station of its mandatory carriage rights in the Grand Rapids-Kalamazoo-Battler Creek ADI if its request to add Lansing and East Lansing to the ADI is granted. WJUE-TV adds that, although it cannot yet show historic carriage or audience ratings, about thirty-five residents of the designated cable communities have contacted the station inquiring about programs or about products offered over-the- air, and that it is in the process of being added to local television ratings. WJUE-TV states that so far as local coverage is concerned, its City Grade contour covers both Lansing and East Lansing. With respect to local service, WJUE-TV states that in addition to the local programs it previously mentioned, it also just filmed a program about Michigan's Food Shelf Program with the American Red Cross, and it is presently working with the Lansing Catholic Archdiocese on a program about faith. Citing the Bureau's prior decision in Chronicle Publishing Company, WJUE-TV concludes that the fact that other stations serve the cable communities does not bar its ADI modification petition. ANALYSIS AND DECISION 11.We shall grant WJUE-TV's petition for market modification. The evidence submitted, evaluated pursuant to the four statutory and other relevant factors, persuades us that the communities herein are properly considered part of the station's ADI. With regard to the first statutory factor, we note that historical carriage is not by itself controlling in this particular circumstance, because if it were found to be contolling that would, in effect, prevent new stations from ever being entitled to carriage contrary to the policy of the statute. Thus, becasue WJUE-TV is a new station, we find that historic carriage is of little assistance in determining the correct scope of WJUE-TV's market. For like reasons, ratings data (factor four) also do not serve to define WJUE-TV's market area because, as we have previously noted, viewing patterns can take up to three years to establish in the case of new stations. 12.With respect 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 contour as well as the proximity of the station to the subject communities. The fact that WJUE-TV's City Grade contour currently encompasses both of the specified cable communities is compelling evidence that WJUE-TV provides service to both these communities. The Commission in general has noted the importance of a City Grade signal in determining local coverage. Moreover, we note that WJUE-TV's transmitter site is actually physically located in the Lansing ADI, approximately only 13 miles from Lansing and 15 miles from East Lansing. In view of the close proximity of the station to the subject communities and the local service provided, as demonstrated by the City Grade coverage involved, we believe that a modification of the WJUE-TV's market is warranted. In addition, WJUE-TV notes that it was selected by the Michigan Emergency Alert System to provide their signal both to Lansing and to East Lansing. 13.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. 14.The suggestion that, if WJUE-TV is granted additional carriage rights in the Lansing ADI it should lose carriage rights in the Grand Rapids-Kalamazoo-Battle Creek ADI is not a matter that can be addressed in the context of this proceeding. CLAUSES 15.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-4984-A), filed March 25, 1997, on behalf of Horizon Broadcasting Corporation IS GRANTED. 16.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