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                                Before the
                     Federal Communications Commission
                          Washington, D.C. 20554

In re Petition of:                   )
                                     )
Budd Broadcasting Company, Inc.      )     CSR-5237-A
                                     )
For Modification of Market of Station)
WGFL(TV)                             )


                      MEMORANDUM OPINION AND ORDER

   Adopted:  August 10, 1998                       Released:  August 12, 1998  

By the Deputy Chief, Cable Services Bureau:

                               INTRODUCTION

1.      Budd Broadcasting Company, Inc. ("Budd"), Licensee of Station WGFL (Channel 53, "WGFL"
or "the Station"), High Springs, Florida has filed a petition to add certain communities located in Marion
County, Florida to WGFL's area of dominant influence (or "ADI") insofar as mandatory carriage of the
station is concerned.  Time Warner Entertainment-Advance/Newhouse Partnership, dba Time Warner
Communications ("TWC") filed an opposition to this petition, and Budd 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 purpose of this section.

In considering such request, 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 non-cable 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 is 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.  The factors are 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 of other programming of interest to the community could
  be demonstrated by program logs or other descriptions of local programming offerings. 
  The final factor concerns viewing patterns in the cable community in cable and non-cable
  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 non-cable homes, and significantly viewed surveys
  typically measure viewing only in non-cable 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 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.

                  MARKET FACTS AND THE PARTIES ARGUMENTS

7.      Station WGFL is licensed to High Springs, Florida, which is in Alachua County, Florida, and in
the Gainesville ADI.  The communities at issue in this proceeding are all located in Marion County,
Florida, which is located within the Orlando-Daytona Beach-Melbourne ADI.  

8.      In support of its petition, WGFL asserts that it satisfies each of the four market modification
criteria set forth in the 1992 Cable Act.  With respect to historical carriage, WGFL notes that it is a fairly
new station, having started its on-the-air operation in October 1997.  WGFL argues that the historical
carriage factor is not by itself dispositive of a station's relevant market, and asserts that due to its short
on-air history, the focus on historic carriage is better placed on similarly situated stations.  Thus, WGFL
points out that two full-power stations licensed to Gainesville, Florida, in Alachua County, are carried by
the cable operators serving Marion County -- ABC affiliate WCJB-TV by all five operators and PBS
affiliate WUFT by all but one. WGFL affirms that such a historical carriage "is compelling evidence that
the Gainesville market logically includes Communities within Marion County."  To strengthen this
assertion, WGFL affirms that when the Commission modified WCJB-TV's ADI in 1995, it determined
that a close relationship existed between Alachua and Marion counties.  WGFL argues that in granting
the instant petition, the Commission should follow precedent established in Diversified.  

9.      Concerning the second factor, WGFL asserts that it places a Grade B contour over "all of the
Communities in which WGFL requests cable carriage," and states that its city of license, High Springs is
in close geographic proximity to the Marion County communities in question.  WGFL maintains that it
"broadcasts programming that will serve the residents in Marion County," and explains that during weather
emergencies, it provides warnings to residents in Marion County.  WGFL asserts that it also includes
Marion County events in its Community Planner, which it airs three times a day.  WGFL points out that
the Ocala Star-Banner, a daily newspaper, publishes WGFL's programming in its daily listings.  WGFL
also declares that it will open a local bureau in Ocala by April 1999, and that beginning "this summer"
it will begin to provide daily weather updates that will include Marion County forecasts.  WGFL also
asserts that "[i]n July" WGFL will begin a one-half hour health program primarily designated for senior
citizens in Marion County, and that beginning in April 1998, it would begin broadcasting a program
entitled "On the Spot," to address crime, education, and other community issues in Marion County. 
WGFL notes further that it has a local Ocala telephone number that may be used to contact the Station
in High Springs.  

10.     WGFL acknowledges that other stations serve the Marion County communities at issue, but
contends that this fact should not bar its present ADI claim. Concerning the fourth factor, WGFL notes
that as a new station, it cannot provide the required rating information.  In this regard, WGFL points out
that the Commission has concluded that "viewing patterns can take up to three years" to be established. 
Finally, WGFL claims that the most recent Nielsen DMA Analysis assigns Station WOGX, which is
licensed to Ocala, Marion County, Florida, to the "Gainesville DMA instead of the Orlando DMA."

11.     In opposition, TWC argues that WGFL does not qualify as a local station in the communities
served by the TWC system because the Station cannot demonstrate a history of carriage or provide
statistics on viewing patterns in the areas in question.  TWC argues that WGFL's reliance on the
Commission's modification of WCJB's ADI is misplaced because that decision was based the two factors
WGFL cannot meet.  TWC argues further that WGFL cannot qualify as a local station because it is
geographically remote from the communities TWC serves.  Specifically, TWC asserts that "the
communities of Belleview and Marion Oaks are on the fringe of WGFL's predicted Grade B contour,
while the community of Lynn is outside the station's predicted Grade B contour."  TWC notes that the
distance between High Springs, Florida, and the TWC communities in question range from 52 to 63 miles. 
TWC contends that even if  most of the communities in question are within WGFL's predicted Grade B
contour, that fact alone should not be the basis for granting this petition.  TWC asserts that in addition
to lacking historic carriage and viewership patterns, WGFL fails to demonstrate  that it provides local
service to the communities in question.  Specifically, TWC contends, WGFL has failed to establish a
nexus to the TWC communities.  TWC maintains that it already carries a station that provides local news
coverage to Marion County residents, and insists that WGFL's "wholly speculative future programming
plans can be accorded no evidentiary weight" in the Commission analysis of the instant petition. 

12.     In reply, WGFL states that the reason it cited the Diversified case, was to point out that the
Commission has already recognized an economic and community interrelationship between Alachua and
Marion Counties, and not because the case provided an identical factual situation.  WGFL maintains that
TWC's attempt to emphasize historical carriage as a deciding factor in the Diversified case is baseless
because the Commission "has consistently held that historical carriage is not dispositive of a station's
market because it would prevent new stations, such as WGFL, from ever being entitled to carriage." 
WGFL affirms that TWC's geographic remoteness argument is flawed and is not supported by the cases
it cites.  Unlike those cases, WGFL notes, in the instant case, WGFL does place a Grade B contour over
the communities at issue, and provides programming directed to the residents of the communities in
question, including the ones TWC serves.  WGFL notes further that these communities are within the
range of distances the Commission has approved in prior ADI modification cases.  Finally, WGFL re-
states its argument that it should not be barred from seeking a market modification because a station
licensed to Ocala, Marion County, already serves the communities at issue. 

                           ANALYSIS AND DECISION

13.     We are not persuaded by Budd Broadcasting Inc.'s arguments with respect to its petition for
market modification.  We will therefore deny its request.  The evidence the Station submits, evaluated
pursuant to the four statutory and other relevant factors, does not persuade us that the communities herein
are properly considered part of the WGFL's market.  

14.     With respect to the first statutory factor, while we recognize that WGFL's lack of demonstrated
historical carriage is a reflection of the Station's recent origin, we disagree with its argument that the
Commission should find that WGFL meets this factor by focusing on the historical carriage of two other
stations licensed to a different community.  Although WCJB-TV and WUFT are licensed to the same
County as WGFL, they are not "similarly situated."  WCJB and WUFT are licensed to Gainesville and
WGFL to High Springs.  Both of these stations are at least 20 miles closer to the subject communities. 
The transmitter of WCJB, moreover, is virtually on the border that divides Marion and Alachua Counties. 
In contrast, WGFL is farther to the Northwest, away from Marion County. 

15.     Turning to the second statutory factor, WGFL claims close proximity to the Marion County
communities.  No map is provided, however, that locates the fifty specific communities involved in terms
of the distance from the station or their location within its service area.  All that is provided is a list of
communities, many of which are not readily identifiable on maps to which the staff has ready access, and
general statements concerning distances to a few communities.   A least some of the communities
involved appear to be outside of the station's Grade B contour. As noted above, however,  we accept
that the presence of a Grade B contour over a community is evidence generally sufficient to satisfy this
factor. 

16.     With respect to programming service, WGFL has not shown that it carries programming of
specific local interest or import for cable viewers in the communities in question.  The information
concerning WGFL's current and proposed programming indicates that these offerings may have a potential
general interest to the Marion County area, but are not specifically tailored to the communities at issue
in this matter.  Although, WGFL asks that we take into consideration its future programming plans and
commitments, we cannot conclude that it is a "local station," based upon future intentions.  The airing of
some occasional programming potentially associated with some of the communities in question is not
enough.  For the purposes of determining whether a station is local to a specific market at a given point
in time, our focus is on the programming being aired.  As we have previously concluded, we are unable
to base our market modification decisions on programming that may or may not be aired at some future
date.  

17.     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 toenhance a station's claim
where it could be shown that other stations do not serve the communities at issue. 

18.     With regard to viewership, we recognize that, as a new station, WGFL has not had much time to
build an audience to establish viewing patterns, amass the required rating statistics, or establish viewing
patterns, which, as the Commission noted in Dazed, supra, in the case of a new station, can take up to
three years to establish.  

19.     We have carefully considered each statutory factor in the context of the circumstances presented
here.  When taken together, however, we believe that WGFL has not established that the communities
at issue are properly considered part of WGFL's ADI.  The provision of Grade B coverage alone, apart
from the other statutory factors, is insufficient to establish the nexus necessary to warrant market
modification.  In addition, in our analysis, the lack of current targeted programming weighs against
WGFL.

                             ORDERING CLAUSES

20.     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 captioned
petition for special relief filed April 2, 1998 by Budd Broadcasting, Inc. IS DENIED.

21.     This action is taken pursuant to  0.321 of the Commission's Rules.


        FEDERAL COMMUNICATIONS COMMISSION



        William H. Johnson
        Deputy Chief, Cable Services Bureau