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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: ) ) Paxson Communications Corporation) CSR-5229-A ) For Modification of the Raleigh-Durham,) North Carolina ADI Market ) MEMORANDUM OPINION AND ORDER Adopted: October 19, 1999 Released: October 21, 1999 By the Chief, Consumer Protection and Competition Division, Cable Services Bureau: I. INTRODUCTION 1. Paxson Communications Corporation, licensee of Station WFPX-TV (Ind., Ch. 63), Fayetteville, North Carolina, has filed the above-captioned petition, which seeks to include, for must carry purposes, the communities of Lumberton, Robeson, Parkton, Roberson, Lumber Bridge, Red Springs, Rennert, St. Pauls and Pembroke, North Carolina, which are served from three separate headends by Time Warner Entertainment/Advance Newhouse Partnership. No opposition to this petition has been received. II. BACKGROUND 2. Pursuant to Section 614 of the Communications Act and implementing rules adopted by the Commission in 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, 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. III. THE PLEADINGS 7. WFPX-TV is located within the Raleigh-Durham, North Carolina ADI. Robeson County, North Carolina, where the communities are located, is considered to be within the Wilmington, North Carolina ADI. 8. In support of its request, WFPX-TV states that the subject communities should be included in its market because it meets the four market modification criteria. First, WFPX-TV states that it has a history of carriage on the three systems serving the instant communities. WFPX-TV indicates that it has been carried on the Red Springs and Pembroke cable systems since 1987 and 1988, respectively, and the Lumberton system since some time prior to January 1, 1997. WFPX-TV points out that in addition to WFPX-TV, the subject cable systems have also historically carried another Fayetteville station, WKFT, as well as two other Raleigh-Durham market stations, WRAL and WTVD. 9. Second, WFPX-TV states that it places a City Grade signal over the majority of the communities and a Grade B or better signal over the remainder. WFPX-TV argues that the Bureau has consistently found that broadcast stations which are shown to have a Grade B or better signal provide local service to the communities. 10. Third, WFPX-TV states that it provides the cable communities with a substantial amount of local programming specifically tailored to the interests of the residents. WFPX-TV indicates that its program format combines local public affairs, religious, news and sports programming with off-network and national religious and public affairs programming. For instance, WFPX-TV states that it has an arrangement with the University of North Carolina at Pembroke, located in Robeson County, to air "WNCP Programming" every weekday morning and that it also airs local high school sports, including the Lumberton High School football games. 11. Fourth, while WFPX-TV concedes that its ratings shares are not as significant as the stations with which it competes, it maintains that the Bureau has previously stated that ratings are of little probative value in cases where independent stations with programming such as WFPX-TV's which "traditionally has drawn smaller audiences," seek to add communities to their market. Moreover, WFPX-TV points out that the Bureau has also repeatedly determined that the ability of other eligible stations to provide coverage or other local service to the communities provides no basis for denying a station's petition to add communities. 12. Finally, WFPX-TV argues that additional support for grant of its request comes from the Bureau's grant of a Wilmington, North Carolina station's request to include communities within its market from the southern portion of the Raleigh-Durham ADI, including Fayetteville. WFPX-TV submits that the similarities between this decision and its current request mandates grant of the petition. IV. DISCUSSION 13. We grant WFPX-TV's petition. 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 market areas 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. The enumerated factors, however, were "not intended to be exclusive." 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." We believe that the addition of the communities herein to WFPX-TV's television market will better effectuate the purposes of the must carry statutory provisions. 14. In analyzing the four statutory factors for market modification, we find that WFPX-TV meets virtually all of market modification factors. It is historically carried in the subject communities; it provides either a City Grade, Grade A or Grade B signal to the communities, and it provides locally-focused programming. With regard to WFPX-TV's lack of viewership, WFPX-TV correctly notes that the Commission has recognized that stations with programming such as it has typically attract limited audiences. Consequently, while of some significance, we do not rely heavily upon this factor. With regard to the third statutory factor, we believe that, in general, Congress did not intend this 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 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. In view of the above, and the fact that no opposition to this request has been received, we believe that a grant of petitioner's request is in the public interest. V. ORDERING CLAUSES 15. Accordingly, IT IS ORDERED, pursuant to Section 614(h) of the Communications Act of 1934, as amended, and Section 76.59 of the Commission's rules, that the petition for special relief filed on behalf of Paxson Communications Corporation IS GRANTED. 16. This action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules. FEDERAL COMMUNICATIONS COMMISSION Deborah Klein, Chief Consumer Protection and Competition Division Cable Services Bureau