******************************************************** 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 the Matter of: ) ) USA Station Group Partnership of Hollywood, Florida ) ) For Modification of Television Market of ) CSR 5348-A Station WAMI-TV, Hollywood, Florida ) ) Petition for Special Relief ) MEMORANDUM OPINION AND ORDER Adopted: May 5, 1999 Released: May 13, 1999 By the Deputy Chief, Cable Services Bureau: I. INTRODUCTION 1. USA Station Group Partnership of Hollywood, Florida ("USA Station") filed the captioned petition which seeks to include certain Palm Beach County, Florida communities within the market of television station WAMI-TV, Hollywood, Florida. Oppositions to the petition have been filed by Adelphia Cable Communications ("Adelphia"), Comcast Cablevision of West Palm Beach, Inc. and Comcast Cablevision of Boca Raton, Inc., operators of cable systems in Palm Beach County. USA Station filed a consolidated reply to the oppositions. The communities affected by the petition are listed on Appendix "A." II. BACKGROUND 2. Pursuant to Section 614 of the Communications Act of 1934, as amended by the Cable Television Consumer Protection and Competition Act of 1992 ("1992 Cable Act"), and implementing rules adopted by the Commission in Implementation of the Cable Television Consumer Protection and Competition Act of 1992, Report and Order ("Must Carry Order"), commercial television broadcast station are entitled to assert mandatory carriage rights on cable systems located within the station's market. A station's market 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 station 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. The Commission is also directed to consider changes in market areas. Section 614(h)(1)(C) further 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, Section 614(h)(1)(C)(ii) 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 station 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. 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 station 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 station 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 station 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. 4. The Commission provided guidance in its Must Carry Order to aid decision making in these matters, stating: 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 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. In adopting rules to implement this provision, the Commission indicated that changes requested 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 station rather than applicable in common to all station in the market. 5. Adding communities to a station's market generally entitles that station to insist on cable carriage in those communities. However, this right is subject to several conditions: 1) a cable system operator is generally required to devote no more than one-third of the system's activated channel capacity to compliance with the mandatory signal carriage obligations; 2) the station is responsible for delivering a good quality signal to the principal headend of the system; and 3) the system operator is not required to carry the signal of any station whose signal substantially duplicates the signal of any other local signal carried, or the signals of more than one local station affiliated with a particular broadcast network. If, pursuant to these requirements, a system operator elects to carry only one such duplicating signal, the operator is obliged to carry the station from the ADI whose city of license is closest to the principal headend of the cable system. Accordingly, depending upon the circumstances involved, the addition of communities to a station's market may have the following consequences. It may guarantee that station's carriage in the subject communities. Should there be more must-carry station than one-third of the system's channel capacity, it would provide the system operator with an expanded list of must-carry signals from which to choose. Should the station be a duplicating network station, it will determine which station has priority carriage in the subject communities added. III. MARKET FACTS AND ARGUMENT 6. USA Station concedes that WAMI-TV has no history of carriage on the cable systems serving the Communities at issue. USA Station states that WAMI-TV, formerly an "electronic retail station," is now a "locally formatted" station and urges the Commission not to give the station's lack of historic carriage significant weight. USA Station argues that to do so would frustrate the growth and development of stations such as WAMI-TV, contrary to the policy of the must carry statutory provisions. USA Station notes that many other stations licensed to Miami and Fort Lauderdale are carried in the Communities at issue. USA Station asserts that the Commission in other cases has found that such carriage represents a nexus between communities in which the stations are carried and their community of license and provides a basis for denying a request for exclusion of communities from a station's market. USA Station argues that a similar principle should guide the Commission in analyzing this request, because the carriage of the Miami and Fort Lauderdale stations in Palm Beach County represents a nexus between the Palm Beach County Communities at issue and WAMI-TV's community of license. 7. USA Station contends that WAMI-TV provides local service to the Communities at issue. USA Station submitted an engineering study utilizing the Longley-Rice propagation model in support of its assertion that the Communities encompassed by the petition are located within either WAMI-TV's Grade A or Grade B signal contours. USA Station states that the Communities covered by the petition are located between 21 and 55 miles from WAMI-TV and thus are within the range of distances within which the Commission has added communities to stations' markets in other market modification proceedings. USA Station also points out that the Commission recently expanded the television markets of two other Miami television stations, WBFS-TV and WDZL-TV, to include certain Palm Beach County communities that lie within those stations' Grade B contours. USA Station contends these two decisions support the addition of the instant Communities to WAMI-TV's market, because the Communities at issue here are also shown to be within the station's Grade A or Grade B contours. 8. With respect to local programming, USA Station identifies a number of WAMI-TV's programs which it claims provide locally oriented programming services to the Communities. According to USA Station, this programming consists of nine and one-half hours of local programming daily that includes a nightly half hour local newscast, a block of children's programming, a show that targets second generation Americans of Hispanic descent, a program that "follows Miami herald reporters as they pursue local stories," and a program based on a popular Miami fashion and lifestyle magazine. The station also carries Miami Heat basketball games, Florida Marlins baseball games, Southeastern Conference football games, and soccer games. USA Station points out that carriage of Miami Heat games was cited in Channel 13, Inc. as a factor supporting the inclusion of certain Palm Beach County communities in WBFS-TV's market. USA Station also provided examples of news and public interest stories that it contends involved events and people in the Communities at issue. 9. USA Station asserts that the provision by other stations of local service to cable communities is not considered by the Commission as a bar to a request to add communities to a station's market but rather as having more relevance to requests to delete communities. USA Station claims that the Commission treats this factor as one that may enhance a market inclusion request where other stations do not provide local service. 10. Adelphia and Comcast oppose the petition by arguing that USA Station's market modification request rests entirely on the fact that WAMI-TV provides Grade A and Grade B coverage of the Communities at issue, and that the statutory factors applicable in connection with television station market modification requests cannot be deemed satisfied solely by a showing of technical coverage of the Communities at issue. Adelphia and Comcast contest every other aspect of USA Station's case bearing on the other statutory factors. In particular, they claim that WAMI-TV provides little or no programming directed to the Communities at issue. They assert that information and descriptions provided with respect to WAMI-TV's weekly local programming show that the bulk of that programming is directed toward the station's Miami audience and not the Communities at issue, and that the portion of WAMI-TV's programming that may be credited as directed toward Palm Beach County communities consists of only twenty news stories presented over a six month period. Adelphia contends that WAMI-TV is not listed among significantly viewed stations in Palm Beach County and provides a Nielsen County Coverage Report which concludes that WAMI-TV does not have any viewing in Palm Beach County. Adelphia asserts therefore that USA Station's failure to provide information showing station viewing in the Communities was the only course available to it. Comcast also notes that WAMI-TV is not listed in The Palm Beach Post, a newspaper serving the Communities at issue and argues that the absence of WAMI-TV over-the-air viewing confirms a lack of meaningful nexus between WAMI-TV and the cable Communities. Adelphia and Comcast claim that ample coverage of local news, weather, sporting events, and other issues of local concern is provided by several other qualified must carry stations on their cable systems. 11. Finally, the cable operators contend that this case may be distinguished from those presented in Channel 33, Inc. and Channel 39, Inc. by the absence here of any station viewing in the Communities, the lack of any history of carriage of WAMI-TV in the Communities, and the absence of any significant amount of programming directed toward the Communities. The cable operators contend that each of these statutory factors were found to be satisfied to some degree in Channel 33, Inc. and Channel 39, Inc. Adelphia contends that WAMI-TV's lack of carriage is not irrelevant as USA Station argues but instead places a heavier burden on the station to demonstrate concretely how its current programming serves local needs of the communities it seeks to add that are not already met by other stations serving those communities. Adelphia claims USA Station's petition has failed to show that WAMI-TV meets that burden. IV. DISCUSSION AND ANALYSIS 12. Station WAMI-TV is located in Hollywood, Florida, in the Miami-Ft. Lauderdale ADI. USA Station, licensee of WAMI-TV, seeks to include the Communities, which are located within the West Palm Beach-Ft. Pierce-Vero Beach ADI, within WAMI-TV's market. Adelphia and Comcast, who operate cable systems within those communities, oppose this proposed market modification request. We resolve this matter by considering the information of record under the four statutory factors set out in Section 614(h)(1)(C)(ii). 13. WAMI-TV has not been carried on any of the cable systems serving the Communities at issue. Moreover, WAMI-TV has been operating for ten years with the Grade B or better signal coverage of the Communities without garnering any reported viewing. We would note, however, that with 84% of households subscribing to cable in Palm Beach County, such high level of cable penetration may adversely affect WAMI- TV's ability to achieve audience ratings. Section 614(h) requires that we consider not only whether cable systems carry the station that is the subject of the market modification petition, but also whether "other stations located in the same area, have been historically carried on the cable system ...." The record shows that several Miami area stations are carried by Adelphia and Comcast on cable systems serving the Communities at issue. We believe such carriage of the Miami-Fort Lauderdale stations is indicative of those communities' interest in programming of Miami-Fort Lauderdale stations. Additionally, the ability of other Miami-Fort Lauderdale stations to reach cable viewers in communities where WAMI-TV is not carried impacts on the ability of WAMI-TV to compete with those other Miami-Fort Lauderdale stations. Adelphia and Comcast contend that WAMI-TV described only some twenty newscasts over a six month period as programming specifically directed toward Palm Beach County and that the other WAMI-TV programming listed by USA Station appears as much directed toward the Miami-Fort Lauderdale audience as toward the audience in the Palm Beach County communities at issue here. We believe the Palm Beach County Communities at issue would have no less interest in WAMI-TV's carriage of the Miami Heat basketball games, the Florida Marlins baseball games, and Southeastern Conference football and soccer games than would Miami and Fort Lauderdale communities. 14. The Commission recognized in the 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 contour coverage over the cable community or is located close to the community in terms of mileage." Grade B contour coverage is an efficient tool to adjust market boundaries in situations where the other factors do not provide a clear basis for distinguishing market boundaries by not revealing whether particular communities within the larger geographic area involved are properly inside or outside of the station's market for purposes of Section 614(h). We have stated that Grade B coverage may be sufficient to satisfy the local service factor. WAMI-TV's provision of Grade B coverage over the Communities at issue is given positive weight under the local service factor with respect to those Communities. 15. We have carefully considered each statutory factor in the context of the circumstances presented here. We conclude that the requested addition of certain of the more southern Palm Beach County Communities to the television market of WAMI-TV will better effectuate the must-carry statutory provisions' purpose of ensuring that television stations are carried in areas which they serve and which form their economic market. We conclude that WAMI-TV's economic market should include the following Palm Beach County communities: Aberdeen, Atlantis, Boca Del Mar, Boca Pointe, Boca Raton, Boca West, Boynton Beach, Briney Breezes, Country Club Trail, Delray Beach, Glen Ridge, Green Acres City, Gulf Stream, Hamptons at Boca Raton, Highland Beach, High Point, Hypoluxo, Kings Point, Lake Clarke Shores, Lakeside Green, Lake Worth, Lantana, Manalapan, Mission Bay, Ocean Ridge, Palm Springs, Rainbow Lakes, Sandalfoot Cove, South Palm Beach, Sun Valley, Village of Golf, Village of Oriole, and Whisper Walk. This conclusion is based on our findings that WAMI-TV provides local service to these communities in the form of Grade B or better technical signal coverage and an element of programming of local interest to the Communities and that the station's viewing levels may be adversely impacted by high cable penetration levels as well as its prior status as a specialty station. In these respects, WAMI-TV presents a case which is not distinguishable from our earlier decisions involving two other Miami-Fort Lauderdale stations, Channel 33, Inc. and Channel 39, Inc. In those two actions, many of the Communities at issue here were added to the market of two other Miami-Fort Lauderdale stations. While WAMI-TV does not have a history of carriage in the Communities at issue, we note that the two Miami-Fort Lauderdale stations involved in Channel 33, Inc. and Channel 39, Inc. did not have a history of carriage in all of the communities added to their markets. 16. In granting the Commission authority to modify market areas to better effectuate the purposes of the Section 614, Congress manifested no intent for us to alter the basic structure of an ADI market by including its core within another ADI market. Nonetheless, USA Station seeks to include within WAMI-TV's market a number of Palm Beach County communities that we consider as forming the core of the West Palm Beach-Ft. Pierce-Vero Beach ADI. These communities, which are north of U.S Route 98, are: Century Village, Cloud Lake, Cypress Lake, Golden Lakes, Golfview, Haverhill, Lake Park, Lakeside Green, Magnolia Park, Mangonia Park, North Palm Beach, Palm Beach, Palm Beach Shores, Park Lake, Riviera Beach, Royal Palm Beach, Westgate-Belvedere Homes, and West Palm Beach. We believe the inclusion of these communities within WAMI-TV's market would modify the basic nature and competitive relationships within the core of the West Palm Beach-Ft. Pierce-Vero Beach ADI and conflict with Congress' objective of carriage of television stations in the economic markets areas they serve. We also note that none of these communities were added to the markets of the two Miami-Fort Lauderdale stations considered in Channel 33, Inc. or Channel 39, Inc. V. ORDERING CLAUSES 17. Accordingly, IT IS ORDERED, pursuant to Section 614(h) of the Communications Act of 1934, as amended, 47 U.S.C. 534(h), and Section 76.59 of the Commission's Rules, 47 C.F.R. 76.59, that the petition for special relief filed on behalf of USA Station Group Partnership of Hollywood, Florida in File No. CSR-5348-A IS GRANTED IN PART and the television market of television station WAMI-TV IS MODIFIED to include the following Palm Beach County, Florida communities: Aberdeen, Atlantis, Boca Del Mar, Boca Pointe, Boca Raton, Boca West, Boynton Beach, Briney Breezes, Country Club Trail, Delray Beach, Glen Ridge, Green Acres City, Gulf Stream, Hamptons at Boca Raton, Highland Beach, High Point, Hypoluxo, Kings Point, Lake Clarke Shores, Lakeside Green, Lake Worth, Lantana, Manalapan, Mission Bay, Ocean Ridge, Palm Springs, Rainbow Lakes, Sandalfoot Cove, South Palm Beach, Sun Valley, Village of Golf, Village of Oriole, and Whisper Walk. 18. IT IS FURTHER ORDERED that the petition IS DENIED IN PART and the television market of television station WAMI-TV IS NOT MODIFIED with respect to the following Palm Beach County, Florida communities: Century Village, Cloud Lake, Cypress Lake, Golden Lakes, Golfview, Haverhill, Lake Park, Lakeside Green, Magnolia Park, Mangonia Park, North Palm Beach, Palm Beach, Palm Beach Shores, Park Lake, Riviera Beach, Royal Palm Beach, Westgate-Belvedere Homes, and West Palm Beach. 19. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau ATTACHMENT 'A' Palm Beach County, Florida Communities Affected by the Petition of USA Station USA Stations seeks to include the following Palm Beach County, Florida communities within its local television market: Aberdeen, Atlantis, Boca Del Mar, Boca Pointe, Boca Raton, Boca West, Boynton Beach, Briney Breezes, Century Village, Cloud Lake, Country Club Trail, Cypress Lake, Delray Beach, Glen Ridge, Golden Lakes, Golfview, Greenacres City, Gulf Stream, Hamptons at Boca Raton, Haverhill, Highland Beach, High Point, Hypoluxo, Kings Point, Lake Clarke Shores, Lakeside Green, Lake Worth, Lantana, Magnolia Park, Manalapan, Mission Bay, North Palm Beach, Ocean Ridge, Palm Beach, Palm Beach Shores, Palm Springs, Park Lake, Rainbow Lakes, Riviera Beach, Royal Palm Beach, Sandalfoot Cove, South Palm Beach, Sun Valley, Village of Golf, Village of Oriole, Westgate-Belvedere Homes, West Palm Beach, and Whisper Walk, which are referred to collectively as "Communities." USA Stations Petition, Exhibit A. Adelphia provides cable services in Atlantis, Boca Del Mar, Boca Pointe, Boca Raton, Boca West, Boynton Beach, Century Village, Cypress Lakes, Delray Beach, Golden Lakes, Greenacres City, Gulf Stream, Hamptons at Boca Raton, Highland Beach, High Point, Kings Point, Lake Park, Lakeside Green, Lake Worth, Lantana, Mission Bay, North Palm Beach, Ocean Ridge, Palm Beach Shores, Palm Springs, Riviera Beach, Royal Palm Beach, Sandalfoot Cove, Village of Golf, Village of Oriole, and Whisper Walk. Adelphia Opposition at p. 1. Comcast Cablevision of West Palm Beach, Inc. provides cable service in Boynton Beach, Cloud Lake, Delray Beach, Glen Ridge, Golfview, Green Acres, Haverhill, Hypoluxo, Lake Clarke Shores, Lake Worth, Lantana, Manalapan, Mangonia Park, North Palm Beach, Palm Beach, Palm Springs, Riviera Beach, Royal Palm Beach, South Palm Beach, and West Palm Beach. Comcast Cablevision of Boca Raton, Inc. provides cable service to Boca Raton. Comcast Opposition, p. 2, n. 2.