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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 the Matter of: ) ) Diversified Broadcasting, Inc. ) CSR-5280-A ) For Modification of the Gainesville,) Florida ADI ) MEMORANDUM OPINION AND ORDER Adopted: November 12, 1998 Released: November 16, 1998 By the Acting Chief, Consumer Protection and Competition Division, Cable Services Bureau: INTRODUCTION 1. Diversified Broadcasting, Inc., licensee of Television Broadcast Station WCJB (ABC, Ch. 20), ("WCJB") Gainesville, Florida, has filed the above-captioned petition which seeks to include various communities located in five counties in Florida within the Area of Dominant Influence ("ADI") of WCJB. An opposition to this petition was filed on behalf of Media Venture Management, Inc., licensee of Station WTXL-TV (ABC, Ch. 27), Tallahassee, Florida, and comments were filed on behalf of TeleVision 12 of Jacksonville, Inc., licensee of Television Broadcast Station WTLV (NBC, Ch. 12), Jacksonville, Florida; Meredith Corporation, licensee of Television Broadcast Station WOGX (Ind., Ch. 51), Ocala, Florida; and, jointly, Coxcom, Inc. and Comcast Cable Communications, Inc. WCJB has filed a joint reply to both the opposition and the comments. BACKGROUND 2. Pursuant to 614 of the Communications Act and implementing rules adopted by the Commission in its Implementation of the Cable Television Consumer Protection and Competition Act of 1992, Broadcast Signal Carriage Issues ("Must Carry Order"), 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 Must Carry Order 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. SUMMARY OF ARGUMENTS 7. WCJB is located within the Gainesville, Florida ADI. The county of Suwanee is located in the Tallahassee-Thomasville, Florida ADI, while the counties of Columbia, Putnam, Bradford, and Union are located in the Jacksonville, Florida ADI. WCJB argues that it complies with each of the four statutory factors and should be given must carry rights in the instant communities. First, WCJB states that since it is the exclusive ABC network affiliate in the Gainesville, Florida market, it has been carried voluntarily by many of the cable systems in the requested communities pursuant to retransmission consent agreements for an average of 5 to 10 years, and in some cases up to nearly 30 years. WCJB argues that this clearly indicates the station's appeal to the viewers in these communities. However, WCJB states that it would prefer to have must carry rights in those communities, instead of contractual rights, and to be carried on all of the cable systems serving the communities. Obtaining must carry rights, WCJB maintains, would allow it to avoid the often lengthy and complicated negotiations inherent in retransmission consent contracts and would ensure that additional copyright liability would not be incurred by cable systems serving the communities at issue. 8. Second, WCJB states that its Grade B contour encompasses all of the requested communities except Palatka in Putnam County and Live Oak in Suwanee County. However, it points out that Palatka is only about 5 miles outside the Grade B contour and the major cable system in Putnam County has carried WCJB for approximately 3 decades. In addition, WCJB states that Live Oak, which is approximately 14 miles outside the Grade B contour, is not adequately served by the Tallahassee and Jacksonville stations which are further away geographically than is WCJB. 9. Third, WCJB indicates that its news department extensively covers events of local interest to residents of the communities. WCJB points out that in Columbia County it covers an average of 240 news stories a year, has an agreement with Lake City Community College to provide 3 reports per week of news in the area, and provides specific weather coverage on a daily basis. In the remaining areas, WCJB indicates that it covers, on average, 72 news stories per year in Putnam County, 50 per year in Suwanee County, and 50-75 per year in Bradford and Union Counties, as well as providing specific weather coverage. In addition, WCJB states that it actively participates in various local events and contributes to local charitable organizations. WCJB argues that its strong presence in the requested communities can be buttressed by the stations advertising sales figures which indicate support from local businesses. 10. Fourth, WCJB argues that, because no other commercial television stations in the Gainesville ADI provide the same news and locally-oriented programming as WCJB and the television stations in Jacksonville and Tallahassee are too distant to adequately serve the instant communities, the grant of mandatory carriage rights for WCJB is extremely important. For instance, WCJB states that during the recent fires in Florida, it provided constant text crawls at the bottom of the television screen for the affected areas covered by its signal as well as hourly special reports. WCJB points out, however, that residents of Starke were unable to receive this information since the cable system serving that community had dropped WCJB after six years of carriage and the Jacksonville station the system carried instead, which is more than 45 miles away, chose to focus most of its coverage on the fires closer to Jacksonville. 11. Finally, WCJB states that the latest Nielsen ratings information indicates that it garners strong audience shares in the designated counties for the two main dayparts, including daytime (Monday- Friday, 9 a.m - 4 p.m.) and prime time (Monday-Sunday). WCJB maintains that such strong ratings clearly indicate that its signal is widely viewed in the subject communities. WCJB concludes that even though it is currently carried on systems serving many of the communities, only through a legal modification of its ADI can the residents of all of the communities be assured of receiving the station. 12. The comments of WTLV express no objection to WCJB's request to include the instant communities within its ADI due to the station's long history of carriage in those communities. It states that WCJB's circumstances are unique and its modification request essentially requests preserving the status quo. Nevertheless, WTLV indicates that it considers the communities requested for inclusion to be very much a part of the Jacksonville market and notes that it regularly includes coverage of these areas in it local newscasts and local programming. 13. In its comments, WOGX states that it does not oppose WCJB's request, but notes that, as the only other commercial station licensed to the Gainesville ADI, a grant of the modification would place it at a severe competitive disadvantage with WCJB. It therefore puts the Commission on notice that should it grant WCJB's request, it will be filing its own request for modification, maintaining that, in all respects, it should be treated similarly to WCJB. It argues that there is Commission precedent in this regard for other similar situations. Further, WOGX questions WCJB's coverage claims, pointing out that at least three communities, Palatka, Lake City and Live Oak are all located outside the station's predicted Grade B contour. Since Palatka and Live Oak are substantially outside, WOGX argues that the concept of "on-the-fringe" might be stretched too far to include these communities. 14. WTXL-TV opposes WCJB's request insofar as it relates to the communities of Live Oak and Branford in Suwanee County because WCJB fails to satisfy the four-part criteria. WTXL-TV points out that WCJB is the ABC affiliate for the Gainesville ADI and it is the ABC affiliate for the Tallashassee ADI. It argues that the Congressional interest in preserving local ties would not be served by a grant of WCJB's request since Live Oak and Branford have close political, social and economic ties to the Tallahassee market and are already well served, both by the programming provided by WTXL-TV and other Tallahassee market stations. WTXL-TV maintains that no significance can be attached to WCJB's claim that it has been carried on the Branford cable system for approximately 10 years and the Live oak cable system for 7 years. It states that 76.56(b)(5) of the Commission's Rules provides that a cable operator is not required ". . . to carry the signals of more than one local commercial television station affiliated with a particular broadcast network." Moreover, WTXL-TV points out that if a cable operator elects to carry only one duplicating network station, then that operator is obligated to carry the station whose city of license is closest to the principal headend of the system. In this instance, WTXL-TV states that the Live Oak cable system is geographically closer to the WTXL-TV transmitter site than it is to the WCJB transmitter site and, therefore, even historic carriage could not entitle WCJB to must carry status to the exclusion of WTXL-TV. 15. WTXL-TV argues that the coverage factor "incorporates both technical service and programming service." While WCJB claims that it places a Grade B contour of Branford, WTXL-TV states that nowhere does WCJB make a showing with respect to any local programming service provided to that community, even though it does so for other requested communities. Therefore, WTXL-TV states that Grade B coverage alone should not be sufficient to include Branford within WCJB's market. In addition, WTXL- TV indicates that WCJB's showing for Live Oak is even weaker -- not only does the station acknowledge that the community is outside of its Grade B contour, but it also provides no evidence of meaningful service. WTXL-TV argues that the programs cited by WCJB appear to be general in nature and are insufficient to satisfy this factor. Finally, WTXL-TV states that WCJB fails to show that it secures any advertising revenue from either Branford or Live Oak. 16. While WCJB claims that Live Oak "is not adequately served by Tallahassee and Jacksonville stations," WTXL-TV maintains that WCJB provides not documentation to support this claim and therefore cannot be taken at face value. For instance, WTXL-TV points out that although Live Oak is geographically closer to Gainesville than to Tallahassee, WCJB's transmitter is south of Gainesville and thus farther away from Live Oak than is WTXL-TV's transmitter. WTXL-TV also states that a resident of Live Oak cannot travel by vehicle to Gainesville on a direct route in contrast to Tallahassee which is directly west of the community. WTXL-TV argues that, as Tallahassee is the state capital and Suwanee County is located in the same congressional district as Tallahassee, the residents of Branford and Live Oak have a substantial interest in the extensive news and public affairs programming aired by WTXL-TV. Further, WTXL-TV indicates that consideration should be given to the fact that it has filed a construction permit to construct a new tower and increase its effective radiated power from 1170 kW to 2690 kW thereby increasing its coverage by approximately 10,470 square kilometers. WTXL-TV states that this will enable it to provide even better service to communities in Suwanee County. A grant of WCJB's request, WTXL-TV's argues, would considerably compromise WTXL-TV's ability to expand its local coverage and secure needed advertising revenues. 17. WTXL-TV maintains that WCJB has failed to submit data from both cable and non-cable households or provide community specific data to indicate its viewership within Suwanee County. Therefore, WTXL-TV argues that WCJB has failed to satisfy the fourth factor of the statutory test. 18. In a consolidated reply to the comments and opposition, WCJB points out that only one party, WTXL-TV actually opposed its request and that the oppositiion was only with reference to the communities located in Suwanee County. It maintains that none of the parties has shown that WCJB fails to meet the statutory criteria for modification. WCJB argues that WTXL-TV's arguments with regard to 76.56(b)(5) would only be relevant within the context of a must carry complaint proceeding and only if WCJB tried to force a cable operator situated closer to WTXL-TV to carry WCJB to the exclusion of WTXL-TV. WCJB states that in its modification request, it has only requested that it be granted a change in its ADI boundaries, not that it be granted must carry rights on any particular cable system. Therefore, despite WTXL-TV's assertions, WCJB maintains that the issue of its historic carriage is relevant and must be afforded due weight in the Commission's consideration of this proceeding. Moreover, WCJB indicates that WTXL-TV's claim about the lack of local service is without merit. WCJB states that, as noted in its petition, it covers an average of 50 news stories per year targeted to communities in Suwanee County, in addition to 24 sports and weather stories within a 6 month period. As such, WCJB argues that it has shown its commitment to provide local service to all of the communities in Suwanee County. WCJB states that to suggest, as does WTXL-TV, that the local programming shown is unacceptable merely because it does not solely single out coverage of Live Oak and Branford stories is misplaced. Of the 26,800 residents in Suwanee County, only approximately 6,300, or just under 24%, live in Live Oak which is the largest community in the county and even fewer live in Branford. 19. In addition, WCJB argues that even if WTXL-TV's claim that its adequately serves Live Oak and Branford is correct, a fact which WCJB does not concede, it does not bear strongly on this proceeding because such coverage by other stations is only intended to enhance a station's ADI claim. Should the Commission consider WTXL-TV's coverage claims, however, WCJB points out that while WTXL-TV criticized WCJB for citing coverage which was too general in nature, WTXL-TV does exactly the same thing in its claims of coverage and can point to only 11 stories specifically targeted to Live Oak and/or Suwanee County over the last year. Further, WCJB maintains that grant of its request would not undermine WTXL-TV's efforts to improve its facilities or to better serve its ADI. WCJB states that WTXL-TV would still be able to assert its own must carry rights on cable systems in the county and thus cannot fault WCJB for any loss of cable carriage. In any event, WCJB notes that it has already been voluntarily carried on many cable systems in Suwanee over the past decade without any material degradation to WTXL-TV's carriage. 20. Finally, with reference to WOGX's comments regarding its own potential ADI modification request should the Commission grant WCJB's request, WCJB feels obligated to note that WOGX's circumstances are far different with respect to the communities at issue: a) the station is licensed to Ocala, Florida and is thus in the Orlando ADI; 2) WOGX is a competitor to the Gainesville only to the extent it provides a 6 pm newscast on weeknights which is targeted to Ocala and Gainesville; c) its reach does not extend past Gainesville to the north; and d) it typically ranks much lower than WCJB in ratings. DISCUSSION 21. WCJB is seeking to add 17 communities and unincorporated county areas located in five counties in Florida to its Gainesville ADI. WCJB argues that it sufficiently meets the criteria with regard to the four modification factors. The one opposing party, WTXL-TV disputes this with regard to the communities located in Suwanee County. Based on our analysis of the evidence relating to the four statutory and other relevant factors, we grant WCJB's petition. 22. Historic Carriage. WCJB has a history of long-term carriage in the various communities due to retransmission consent agreements. Clearly, this is an indication that residents have an interest in receiving WCJB's signal. 23. Viewership. Although WCJB is not considered to be significantly viewed in any of the instant counties, according the Nielsen's 1997 County Coverage Survey Data, the station garners substantial viewership figures in each of the five counties: Columbia County -- 13/16; Putnam County -- 3/32; Bradford County -- 5/42; Union County -- 2/36; and Suwanee County -- 8/41. Therefore, we find that WCJB meets this statutory factor. 24. Local Programming. WCJB has adequately shown that it takes an interest in and provides coverage of events, weather and local affairs relevant to the requested communities. Such showing clearly indicates that there is a specific market connection between WCJB and the communities at issue. 25. Coverage by Other Stations. While WCJB alleges, with regard to the community of Live Oak, that it is not adequately served by its own market stations due to the geographic distances involved, WCJB provides no specific information to support this argument. Therefore, our action herein is not a reflection that Live Oak is not adequately served by stations located in the Tallahassee ADI. 26. Station Coverage of Communities. With respect to coverage, the Commission stated in its Must Carry Order 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 communities or is located close to the community in terms of mileage." In this instance, WCJB's Grade B contour appears to encompass all but two communities -- Palatka in Putnam County and Live Oak in Suwanee County. Palatka is approximately 5 miles outside WCJB's Grade B contour while Live Oak is approximately 15 miles outside. 27. The cable television mandatory broadcast signal carriage rules were adopted as part of the 1992 Cable Act. According to the legislative history of that Act, the use of ADI markets is intended "to ensure that television stations be carried in the areas which they serve and which form their economic market." The Act specifically provided that the Commission was to consider adding additional communities or excluding communities from the markets of television stations "to better effectuate the purposes" of the mandatory carriage requirements. In acting on such requests, the Commission was instructed to "afford particular attention to the value of localism, taking into account four specified statutory factors," although these factors were "not intended to be exclusive." 28. In reaching our conclusion, we have considered the statutory factors as well as other relevant information. WCJB has a long history of carriage in the communities (factor I); provides specifically- directed local programming to the communities (factor II); and has significant viewership in the counties in which the communities are located (factor IV). Given the strength of these factors in all of the communities, we see no reason not to also include the communities of Live Oak and Palatka, the only two communities which fall outside the station's predicted Grade B contour, in our action herein. Neither community is located a significant distance from WCJB's city of license and given the flatness of the terrain involved, WCJB's signal is likely to be viewable well beyond its predicted contour radius. Moreover, we disagree with WTXL-TV's objections that the grant of must carry status to WCJB for the communities located within the Tallahassee ADI will endanger WTXL-TV's carriage in the Suwanee County communities herein. WCJB has been carried for a number of years in these communities pursuant to retransmission consent agreements without apparent harm to WTXL-TV's status and the total number of subscribers on the Live Oak and Branford cable systems (2293) is relatively low. ORDERING CLAUSES 29. Accordingly, IT IS ORDERED, pursuant to 614(h) of the Communications Act of 1934, as amended (47 U.S.C. 534(h) and 76.59 of the Commission's Rules, 47 C.F.R. 76.59), that the petition for special relief (CSR-5280-A) filed on behalf of Diversified Broadcasting, Inc. IS GRANTED for the communities of Lake City, Fort White, Palatka, Starke, Brooker, Keystone Heights, Melrose, Hampton, Lake Butler, Live Oak, Branford, and their respective surrounding unincorporated county areas. 30. This action is taken pursuant to authority delegated by 0.321 of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION Deborah Klein, Acting Chief Consumer Protection and Competition Division Cable Services Bureau