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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 re: ) ) DP Media License of Battle Creek, Inc. ) CSR-5162-A (formerly Horizon Broadcasting ) Corporation) ) ) For Modification of the Grand Rapids- ) Kalamazoo-Battle Creek, Michigan ADI ) MEMORANDUM OPINION AND ORDER Adopted: April 1, 1998 Released: April 6, 1998 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. DP Media License of Battle Creek, Inc., licensee of Television Broadcast Station WZPX (Ch. 43), Battle Creek, Michigan (formerly WILV(TV)), has filed the captioned petition which seeks to include various communities located in the Michigan counties of Ingham, Clinton, Eaton, Gratiot, Jackson and Shiawassee, within the Area of Dominant Influence ("ADI") of Station WZPX. 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 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 Report and Order in MM Docket No. 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 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 7. WZPX is located within the Grand Rapids-Kalamazoo-Battle Creek, Michigan ADI. Shiawassee County is located within the Flint-Saginaw-Bay City, Michigan ADI, while the remaining counties are located in the Lansing, Michigan ADI. 8. In support of its request, WZPX states that an analysis of the modification factors demonstrates that its market should be modified to include the instant communities. First, WZPX points out that virtually all of the cable communities herein lie within its Grade B contour and a large percentage lie within either its City Grade or Grade A contour. WZPX argues that the Bureau has repeatedly emphasized the importance of Grade B coverage as a means of demonstrating local service and reflects the Commission's recognition that "as a general matter, Grade B contour demonstrates service to the cable communities and serves as a measure of a station's natural economic market." Moreover, WZPX states that where, as here, a station places a Grade A or City Grade contour over many of the cable communities, the Commission has found such evidence to be "compelling evidence that [the station] provides service" to the communities. In addition, WZPX states that it is geographically proximate to the communities, with the average distance between its transmitter located in Vermontville and the communities no more than 35.4 miles. WZPX argues that these distances are well within the range of distances approved in prior ADI modification decisions. Secondly, WZPX maintains that it provides programming and other services of particular interest to the communities in question. It states that it has produced and aired a number of public affairs programs involving guests and topics of interest to the Lansing and Jackson areas such as volunteer opportunities, social services, local political issues and Emergency Alert System (EAS) warnings. WZPX indicates that it has also established a programming relationship with Lansing Community College, which it is seeking to expand to Michigan State University, which allows it to create local programming geared specifically to the cable communities. 9. WZPX asserts further that, although it cannot demonstrate a history of carriage in all of the communities since it has been on-the-air only since October 10, 1996, some of the largest cable operators such as MediaOne of Michigan, Inc. and C-TEC Cable Systems of Michigan serving the instant cable communities are either carrying or have agreed to carry its signal. WZPX argues that this demonstrates that cable operators in both the Jackson and Lansing areas consider WZPX a local signal. It also maintains that it should not be penalized for failing to demonstrate a history of carriage in all of the communities because the Bureau has recognized that the absence of historical carriage for a new station provides little assistance in determining the scope of the station's market and should not be given great weight. With regard to viewership, WZPX argues that, as a new station, it has not had the opportunity to achieve measurable audience ratings. However, it points out that the Commission has recognized that it can take up to three years for a station to establish viewing patterns and that "it is appropriate to rely on other evidence of the station's local market to determine whether a particular community [or communities] should be added to its market." Finally, WZPX maintains that the Commission has found that the provision of local programming to cable communities by other local stations "does not act as a bar to a station's ADI claim." Therefore, WZPX concludes, the carriage of other local stations by the communities herein should not preclude the grant of its modification request. DISCUSSION 10. We shall grant WZPX's petition for market modification. The evidence the station submits, evaluated pursuant to the four statutory and other relevant factors, persuades us that the communities herein are properly considered part of the WZPX's market. With regard to the first statutory factor, we note that while WZPX has not demonstrated a long history of carriage in the communities in question, they have shown that there is an interest in the station due to MediaOne's and C-TEC's agreements to carry it. Carriage in this context, while not of long duration and coupled with the fact that WZPX has only been on-the-air for less than two years, is probative as to the scope of the market involved and is convincing evidence that the station's programming is of particular interest to viewers in the area. 11. Turning to the second statutory factor, we note that a station's local service to cable communities can be measured, among other ways, by the coverage of its Grade B contour. In this instance, out of the 103 communities WZPX requests to be added to its market, 93 are encompassed by WZPX's Grade B contour. More than two-thirds of those same communities (77) lie within the station's City Grade or Grade A contours. The few remaining communities lie on the fringe of WZPX's Grade B contour. 12. 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 to enhance a station's claim where it could be shown that other stations do not serve the communities at issue. 13. With regard to viewership, we recognize that, as a newer station, WZPX has not had as much time as other stations to build an audience. As noted in paragraph 5 above, viewing patterns and/or significantly viewed surveys to be relied upon in ADI requests are ideally to be conducted on a community-by-community basis. The methodology inherent in such surveys is considerably stricter and a better indication of actual viewing patterns in individual communities. In any case, even when we accept county-wide surveys, it should be taken into account that stations can take up to three years to establish their viewing patterns. Congress could not have intended for such stations to have cable communities deleted from their market solely because their audience shares are not as significant as those of several other stations with which they compete. If this were the case, the 1992 Cable Act would have designated a ratings mechanism, rather than ADIs, as the primary determinant for broadcast signal carriage. 14. The Commission has generally been circumspect about allowing the annexation of central core communities by stations assigned to other ADIs such as WZPX. In this instance, however, due to the close proximity of WZPX to the majority of the relevant communities and that its carriage will not apparently upset any affiliate relationships in the relevant ADIs, we will grant WZPX's request. ORDERING CLAUSES 15. 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 petition for special relief (CSR-5162-A) filed on behalf of Horizon Broadcasting Corporation, IS GRANTED. 16. 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 APPENDIX I Clinton County -- Fowler+ St. Johns+ Bingham+ Watertown+ Eagle+ DeWitt+ Westphalia+ Dutch Hills MHP+ Bath+ Victor+ Maple Rapids+ Elsie* Ovid* Eaton County -- Charlotte+ Grand Ledge+ Oneida+ Eaton Rapids+ Hamlin+ Delta+ Windsor+ Sunfield+ Mulliken+ Roxand+ Potterville+ Eaton+ Benton+ Dimondale+ Bellevue+ Olivet+ Walton+ Onondaga+ Vermontville+ Carmel+ Brookfield Township+ Hamlin Township+ Gratiot County -- Seville# Sumner* Alma# St. Louis# Breckenridge Ithaca* Wheeler Arcada# Bethany -- on the fringe Pine River# Middleton* Perrinton* Ashley* Ingham County -- Alaiedon+ Lansing+ Delhi+ Mason+ Vevay+ Dansville* Ingham+ Aurelius+ Williamston* Webberville* Leroy* Wheatfield* Leslie+ Bunker Hill* Stockbridge* East Lansing+ Michigan State University+ Meridian+ Jackson County -- Leoni# Summit+ Spring Arbor* Napoleon# Liberty# Sandstone* Blackman* Jackson* Concord* Pulaski* Hanover* Parma* Waterloo# Henrietta* Munith* Grass Lake# Rives Junction+ Springport+ Parma Township* Shiawassee County -- Durand -- on the fringe Byron -- on the fringe Vernon# Lennon Burns Vernon# Venice -- on the fringe Bancroft# Shiawassee Perry* Woodhull* Morrice* Laingsburg* Sciota* Owosso# Corunna# Rush# Bennington* Middlebury* +within City Grade Contour *within Grade A contour #within Grade B contour