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File how2ftp (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ***************************************************************** ******** $// MO&O Denies plea to add Lampasas Co. to Austin ADI, DA 95-2373.//$ $/76.55 Definitions applicable to the must-carry rules. /$ $/76.59 Modification of television markets. /$ Before the FEDERAL COMMUNICATIONS COMMISSSION Washington, DC 20554 DA 95-2373 In re: ) ) Austin Television ) CSR-3870-A Austin, Texas ) ) For Modification of ) Station KBVO-TV's ADI ) MEMORANDUM OPINION AND ORDER Adopted: November 20, 1995 Released: December 11, 1995 By the Deputy Chief, Mass Media Bureau: INTRODUCTION 1. Austin Television, licensee of Station KBVO-TV (Channel 42), Austin, Texas, has filed a "Petition for Special Relief" seeking to include within the Austin, Texas "area of dominant influence" the City of Lampasas and the surrounding unincorporated areas served by the Lampasas cable system, all of which are in Lampasas County, Texas. Associated Broadcasters, Inc., licensee of television broadcast station KWKT (Fox., Channel 44), Waco, Texas, filed an opposition to this petition, to which KBVO-TV has replied. BACKGROUND 2. Pursuant to 4 of the Cable Television Consumer Protection and Competition Act of 1992 ["1992 Cable 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 ADI areas. Section 614(h) of the Communications Act of 1934, as amended, 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 1992 Cable 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 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 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 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 stations rather than applicable in common to all stations in the market. The rules further provide, in accordance with the requirements of the 1992 Cable Act, that a station not be deleted from carriage during the pendency of an ADI change request. 7. Adding communities to a station's ADI 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; 3) indemnification may be required for any increase in copyright liability resulting from carriage; and 4) 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 signal of more than one local station affiliated with a particular broadcast network. If, pursuant to these requirements, a system operator elects to carry the signal of only a single affiliate of a broadcast network, the operator is obliged to carry the affiliate from within the ADI of the station whose city of license is closest to the principal headend of the cable system. Accordingly, based on the specific circumstances involved, the addition of communities to a station's ADI may guarantee it cable carriage and specific channel position rights, or may simply provide the system operator with an expanded list of must-carry signals from which to choose, i.e., when the system has used up its channel capacity mandated for broadcast signal carriage, or determined which of duplicating network affiliated stations are entitled to carriage priority. MARKET FACTS AND PARTIES' ARGUMENTS 8. The area at issue herein includes the City of Lampasas, which is currently part of the Waco-Temple-Bryan, Texas ADI. It forms part of the northern border of the Austin ADI, but it is beyond KBVO-TV's Grade B contour. However, both KBVO-TV and KWKT are recognized as significantly viewed in Lampasas County. 9. According to KBVO-TV, this area is also beyond the Grade B contour of KWKT. Moreover, KBVO-TV states that the cable system serving Lampasas and the surrounding area has carried its signal ever since the station commenced operations some 9 1/2 years ago, and the station claims that the residents of this area identify strongly with its city of license, Austin, which is located only 63 1/4 miles from the county seat of Lampasas and 53 7/8 miles from KBVO-TV's transmitter. By comparison, however, KBVO-TV notes that Waco is 71 7/8 miles from Lampasas, and that KWKT's transmitter is 55 1/4 miles from Lampasas. According to KBVO-TV, there are few ties between Waco and the citizens of Lampasas, who frequently travel to Austin for shopping, entertainment, sports, and social events. KBVO-TV states that it provides unique, high quality programming, as well as advertising services to the residents of Lampasas. KBVO-TV also cites Nielsen's 1992 Texas County/ Coverage Study (Lampasas County), stating that it had an overall 3% share of ratings in Lampasas County, which was three times higher than those of KWKT. Between 6:00PM and 6:30PM, KBVO- TV had a 5% share and from 7:00PM to 7:30PM, it received a 7% share. However, during this same time period, KWKT had a 0% share in the County. 10. In its opposition, KWKT states that KBVO-TV's petition is fatally defective, because it seeks inclusion of Lampasas County in its ADI, even though Section 614 of the Communications Act of 1934, as amended, (47 U.S.C. 534) contemplates making such alterations in terms of communities, not counties. KWKT also notes that the schedule submitted by KBVO-TV has no regularly scheduled news, weather, or public affairs programs, and that the station has made no presentation concerning whether or not any other station currently entitled to mandatory carriage by the cable system serving Lampasas broadcasts any local news, weather, public affairs or sports programming. 11. In response, KBVO-TV states that there are only 13,521 residents in Lampasas County, and that they primarily live in the City of Lampasas, in the unincorporated communities surrounding it, and on the ranches nearby; these areas are most accurately described simply as the "Communities of Lampasas County." KBVO-TV adds that it does provide significant local service to this area through its 3-5 daily news breaks, its weather "crawls" and bulletins, its community calendar, and its popular and high quality programming, including "The Rush Limbaugh Show." KBVO-TV also notes that it has organized a "Kids' Club" among some 20,900 area children, including many from the Lampasas area, and that it broadcasts a weekly half-hour public affairs program, "Austin Closeup", which features local guests and subjects of interest to areas around Austin, including Lampasas. KBVO-TV again states that the audience for its station exceeds that of any other station not affiliated with the three traditional networks, especially during those dayparts when local programming is broadcast. Moreover, since bad weather frequently travels from northern Texas through Lampasas on its way to Austin, KBVO-TV states that its weather bulletins often focus on Lampasas, whereas those from Waco do not, because Lampasas is to the southwest of Waco. KBVO-TV adds that no other station currently provides more extensive coverage of events and weather in the Lampasas area than it does, and it notes that in 1992, its viewership exceeded that of all other independent stations, both in cable and in noncable homes. KBVO- TV argues that its requested ADI modification is necessary to reflect the actual marketplace conditions in the Lampasas area and to minimize disruption to cable subscribers there. KBVO-TV notes that when the cable system serving Lampasas stopped carrying its signal on June 1, 1993, its Manager told the station's General Manager that the cable system was bombarded with subscriber complaints. KBVO-TV claims that, even though KWKT now has must-carry rights in Lampasas, it now also wants to prevent KBVO-TV's carriage there, since it does not want competition from another station broadcasting the same programs, even though it has not demonstrated that it provides any local service to the Lampasas area. ANALYSIS AND DECISION 12. We shall deny KBVO-TV's petition. Although KBVO-TV's viewership, according to Arbitron viewing statistics, is greater than that of KWKT, and KBVO-TV has been carried on cable systems in Lampasas County, we, nevertheless, do not believe that the factual pattern presented here warrants a waiver to modify the ADI at issue. In granting the Commission authority to modify ADIs, Congress did not intend for the Commission to alter the basic concept of exclusive market structures. Rather, our waiver process was intended to be used to better reflect present economic market conditions. In this instance, each station is approximately equally distant from the subject communities, and KWKT, in whose existing market the communities are located, places a Grade B contour over a portion of Lampasas County, while the petitioner, Station KBVO-TV, does not. Based upon the above, we see no compelling grounds to upset the present economic structure of the relevant market places, as defined by their current ADI's. Consequently, we find that the markets as presently configured reflect economic market conditions. We believe our decision today comports with Congress's intention to ensure that a station has carriage rights in its economic (ADI) marketplace. ORDERING CLAUSES 13. Accordingly, IT IS ORDERED, pursuant to 614 of the Communications Act of 1934, as amended (47 U.S.C. 534), That the captioned petition for special relief filed June 8, 1993, by Austin Television IS DENIED. 14. 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