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File how2ftp (.txt & .wp) is in directory /pub/Bureaus/Miscellaneous/Public_Notices/ ***************************************************************** ******** $//WNNE-TV, Inc., MO&O, DA 96-185//$ $/76.59 Modification of television markets/$ $/300.534 Carriage of local commercial television signals/$ Before the Federal Communications Commission Washington, D.C. 20554 DA 96-185 In re: ) ) WNNE-TV, Inc. ) CSR-4001-A Hartford, Vermont ) CSR-4002-A ) CSR-4004-A For Modification of Station ) WNNE-TV's ADI ) MEMORANDUM OPINION AND ORDER Adopted: February 13, 1996Released: February 21, 1996 By the Cable Services Bureau: INTRODUCTION 1. WNNE-TV, Inc. ("WNNE-TV"), licensee of commercial television station WNNE-TV (NBC, Channel 31), Hartford, Vermont, filed the captioned petitions seeking to include communities in Sullivan County, New Hampshire; Cheshire County, New Hampshire; and Windham County, Vermont (collectively known as "the Communities") within the Burlington, Vermont-Plattsburgh, New York "area of dominant influence" (ADI) for the limited purpose of the cable television mandatory broadcast signal carriage rules. On September 8, 1993, Group W Television, Inc. ("Group W"), licensee of Station WBZ-TV (NBC, Channel 4), Boston, Massachusetts ("WBZ-TV") filed an opposition to the petitions for special relief. On October 7, 1993, WNNE-TV filed a reply to the Group W Opposition. BACKGRO UND 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, commercial television broadcast stations are 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)(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 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 Act, that a station not be deleted from carriage during the pendency of an market area change request. 7. Adding communities to a station's market area 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 its 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 signals 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, it is obliged to carry the affiliate from within the market 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 market area may guarantee it cable carriage and specific channel position rights; simply provide the system operator with an expanded list of must-carry signals from which to choose, i.e., when it has used up its channel capacity mandated for broadcast signals carriage, or determined which of duplicating network affiliated stations are entitled to carriage priority. MARKET FACTS AND ARGUMENTS OF THE PARTIES 8. Windham County, Vermont and Sullivan County, New Hampshire are contiguous to Windsor County, WNNE-TV's home county. To the south of Sullivan County and across the border from Windham County is Cheshire County, New Hampshire. The borders of Cheshire and Windsor Counties are five miles apart. WNNE-TV's main transmitter in Windsor, Vermont is adjacent to Sullivan County, is 15 miles from Windham County, and is approximately 20 miles from Cheshire County. Boston is approximately 72 miles from Keene, Cheshire County's largest community; 80 miles from Brattleboro, Windham County's largest community; and 90 miles from Claremont, Sullivan County's largest community. 9. WNNE-TV requests modification of its market to include the Communities, which are located in Sullivan and Cheshire Counties, New Hampshire, and Windham County, Vermont. WNNE-TV argues that physically, economically, and in terms of coverage and programming, the relationship and nexus between a station and communities -- which WNNE- TV argues is central to a satisfactory showing for modification to add to a television station's market -- could not be closer than between WNNE-TV and the Communities. Windham County, Sullivan County, and Cheshire County are all within the Boston, Massachusetts ADI. WNNE-TV is located in Hartford, Vermont in Windsor County, which is assigned to the Burlington-Plattsburgh ADI. WNNE-TV states that because the counties are rural and mountainous many viewers in the Communities rely on cable television to receive local broadcast signals. 10. In support of its petitions, WNNE-TV notes that has been carried on all but one cable system in Sullivan County since the early 1980s, and on virtually all cable systems in Windham County since at least 1987. In Cheshire County, WNNE-TV has been carried on most of Cheshire's twelve cable systems since at least 1987 and on one system since 1990. WNNE-TV maintains that carriage is due to the fact that it considers the Communities an integral part of its principle service area and is considered by local businesses as a local station over which they can reach consumers in the Communities. Over a dozen different businesses from each county chose to advertise on WNNE-TV in 1992. WNNE-TV argues that this demonstrates the importance of WNNE-TV as an advertising medium for local business that cannot afford the higher rates of Boston or Portland, Maine stations and who need WNNE-TV to reach their large market area. WNNE-TV states that it places a predicted Grade A contour over all of Sullivan County, more than half of Cheshire County and 80 percent of Windham County, and places a predicted Grade B contour over the remaining parts of the counties. According to WNNE-TV, only one other television station, WMUR-TV (ABC, Channel 9), Manchester, New Hampshire, places a predicted Grade A contour over Sullivan or Cheshire Counties, and no other station places a predicted Grade A contour over Windham County. WMUR-TV places a predicted Grade B contour over 50 percent of Windham County, and both Television Broadcast Stations WRGB (NBC, Channel 6) and WNYT (CBS, Channel 13), both Albany-Schenectady, New York place a Grade B contour over 60 percent of Windham County. There are three other stations that provide Grade B service to 25 percent of Sullivan County. 11. WNNE-TV presents data to suggest that it achieves substantial viewership in both cable and noncable homes in Sullivan, Cheshire, and Windham Counties. Significantly, WNNE-TV points out that A.C. Nielsen in 1992 reassigned Sullivan County from the Boston to the Burlington-Plattsburgh DMA. Moreover, WNNE-TV asserts that it provides more news coverage of the Communities than any other commercial television station. WNNE-TV claims that it provides in-depth local news, weather, sports and election coverage to viewers in the Communities. WNNE-TV states that the three counties are composed of small villages, and that WNNE-TV monitors newsworthy events throughout the counties and broadcasts on a timely basis. WNNE-TV notes that it is aided in doing so by a transportable satellite uplink station (Station E874053). WNNE-TV lists several news stories it broadcast relating to issues of interest to the Communities throughout the three counties. In addition, WNNE-TV serves the community through off-air activities such as co-sponsoring charitable events, organizing school tours of its facilities, and providing speakers for career days at area schools. 12. In addressing the third statutory factor, WNNE-TV believes that because of its location as the closest commercial television station to the Counties and its familiarity and involvement in the community, it provides more news and programming covering the Community than all other stations in the Boston ADI combined. The Boston stations are not located close to the communities and must of necessity direct their programming to the stations' own city of license, Boston. 13. In its opposition, Group W asserts that WNNE-TV has failed to meet the four statutory criteria. Group W argues that WNNE-TV "merely serves as a satellite" of Television Broadcast Station WPTZ (NBC, Channel 5), North Pole, New York, and simply rebroadcasts WPTZ programming. Group W states that its licensee WBZ-TV has a long history of carriage on cable systems in contrast to WNNE-TV. With respect to WNNE-TV's local news and public affairs programming, Group W argues that WNNE-TV's local news is limited to one hour a day during weekdays and none on weekends and no public affairs programming. Group W claims that much of WNNE-TV's programming and news service is generated from WPTZ, more than 120 miles away. In contrast, Group W states, WBZ-TV broadcasts five hours of local news a day during weekdays and three hours on weekends. WBZ-TV traditionally considers the counties an integral part of its viewership and provides news and local information for these counties. Group W states that over the past six years WBZ-TV news programming has covered approximately 100 stories about or of interest to the counties. Group W argues that WNNE-TV cannot match WBZ-TV's news service in substance, quality and level. Moreover, it states that WBZ-TV provides public affairs programming that smaller markets cannot. In addition, Group W states that Arbitron data for each county reveals that WBZ-TV is significantly viewed in the counties. 14. In reply, WNNE-TV argues that Group W's opposition is misleading and devoid of merit as it downplays the fact that WNNE-TV places Grade A and B contours over the Communities, and minimizes the amount of WNNE-TV's local programming while inflating WBZ-TV's own contribution to local programming. WNNE-TV states that it does not rebroadcast the local news carried on WPTZ, but rather the station originates local news broadcasts in its fully staffed Hartford studio with stories directed toward the needs of Communities. WNNE-TV asserts that it only rebroadcasts WPTZ's NBC network and syndicated programming. WNNE-TV disputes Group W's contention that WBZ-TV has been carried on some cable systems since 1955 whereas WNNE-TV has only been carried since 1979 or 1980 as legally insignificant. Group W, according to WNNE-TV, ignores the fact that WNNE-TV began service in 1978, in contrast to WBZ-TV which began service in 1948. WNNE-TV notes that the two stations have had similar continuous carriage patterns, with WNNE-TV appearing on more systems. 15. WNNE-TV argues that Group W's characterization of WBZ-TV's programming is misleading because the portion directed to the Communities is insignificant compared to coverage of interest to its Boston viewers. WNNE-TV asserts that its coverage of the Communities far exceeds that of WBZ-TV. WNNE-TV states that the bulk of WBZ-TV's programming, unlike WNNE-TV's newscasts, is focused not on residents of Communities but on Boston, which is 70 to 90 miles away from the Communities. WNNE-TV claims that events around Boston are of no interest to residents of the Communities. In response to Group W's claims to have broadcast 100 stories over six years (e.g., one and a half stories per month), WNNE-TV argues that this hardly evidences a devotion or focus on needs of Communities. In contrast, according to WNNE-TV, its full-time news staff of eight people broadcast 200 stories concerning Communities over the past 2 years and more than 400 stories over the past six years, four times WBZ-TV's local coverage. WNNE-TV contends that Group W's viewership data is misleading because both stations have significant viewing and during the time periods that include local newscasts WNNE-TV achieves greater viewership. ANALYSIS AND DECISION 16. We shall grant WNNE-TV's petitions. With respect to the first statutory factor, we note that WNNE-TV has demonstrated a history of carriage on most of the cable systems serving the Communities. We note that the one cable system in Sullivan County on which WNNE-TV is not carried---serving the community of Springfield---has only been in operation since 1990. In Cheshire County, the cable systems in the communities of Nelson, Marlow, and Harrisville and some portions of Keene and Rindge do not carry WNNE-TV. In Windham County, the cable system serving the communities of Stratton, Stratton Mountain, Stratton Ski, and Stratton West does not carry WNNE-TV, and the station has only shown itself to be carried currently in Jacksonville, West Dover, and Whitingham. However, WNNE-TV has demonstrated historic carriage with respect to all other cable communities. 17. WNNE-TV has shown that it meets the second statutory factor by providing coverage or other local service to the Communities. WNNE-TV's predicted Grade A contour covers all of Sullivan County, 80% of Windham County and more than half of Cheshire County and WNNE-TV places a Grade B over the remaining areas of Windham and Cheshire Counties. With respect to the communities in Cheshire County on which WNNE-TV has not achieved historic carriage, we note that Nelson, Marlow, and Harrisville are within WNNE-TV's Grade A service contour, while Rindge is at the fringe of the station's Grade B contour. The fact that WNNE-TV places a Grade A or Grade B signal over these communities in Cheshire County is persuasive evidence that WNNE-TV provides service to these communities. Moreover, WNNE-TV's showing is further supported by its coverage of news events and provision of other local service specific to many of the Communities. WNNE-TV has demonstrated that the Communities are close in proximity to WNNE-TV's community of license and the site of its transmitter. We have previously stated that the second statutory criterion may be satisfied with a showing that the station places at least predicted Grade B contour or is located close to the community in terms of mileage. Clearly, WNNE-TV satisfies this criterion in Sullivan, Cheshire, and Windham Counties, based on the coverage of the station's service contours and its close proximity to the Communities. Though Group W attempts to rebut this by arguing that WNNE-TV provides no public affairs programming and limited local news for the Communities, the petitions provide numerous examples of programming directed toward the needs and interests of the Communities. 18. Group W also challenges WNNE-TV's petition under the third criterion, arguing that its Boston licensee, WBZ-TV, is entitled to carriage on cable systems in the Communities in the three counties and provides more and better news and programming coverage of interests to the Communities. We believe that Congress did not intend the third criterion to be a bar to a station's ADI modification 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. Under such circumstances, a denial of carriage rights to the claiming station could deprive cable viewers of any broadcast signals that might provide programming geared to their communities. Because WBZ-TV, along with other stations, does appear to serve the Communities, this enhancement factor would not appear applicable. 19. With respect to the fourth criterion, we find that WNNE-TV has presented evidence of viewing patterns for cable and noncable households to demonstrate substantial viewership of the in the communities located within Sullivan and Windham Counties. A review of Arbitron data for these counties confirms that WNNE-TV achieves a high share of viewership, indeed the highest share relative to the Boston stations. We note that both Nielsen and Arbitron data are county-wide, rather than community-specific. Absent evidence that such data are not fairly reflective of viewing in the actual communities in question, we shall accept such data as probative, although not conclusive, in cases of this type. In addition to the four statutory factors, we believe that the fact that local businesses in the counties use WNNE-TV as an advertising medium further supports a grant of the petitions. With respect to the communities located in Sullivan and Windham Counties, WNNE-TV clearly satisfies the first, second and fourth factors, and, even absent enhancement under the third criterion, has justified grant of its requests. 20. With respect to Cheshire County, for certain communities WNNE-TV has not demonstrated historic carriage. However, the location of these communities within WNNE- TV's Grade A service contour outweighs the lack of historic carriage. As other stations serve Cheshire County the third factor is not applicable. With respect to the fourth factor, WNNE-TV's showing is not as conclusive as it is for Sullivan and Windham Counties. In Cheshire County, Arbitron data reveal that WNNE-TV has only a two total share and 27 percent of net weekly circulation. In contrast, three Boston stations [WBZ-TV, WCVB-TV (ABC, Channel 5), and WHDH-TV (CBS, Channel 7)] and one Manchester station (WMUR- TV) have total shares over 12 and net weekly circulation over 60 percent. WNNE's viewing pattern between cable and non-cable homes is similar: non-cable share of one and nine percent of net weekly circulation; cable share of two and 33 percent of net weekly circulation. However, WNNE-TV has shown that its viewership is most significant during the times when it broadcasts its local news, and has presented Nielsen viewing data on viewership that supports its petition. Moreover, the use of WNNE-TV as an advertising medium by local business in Cheshire County further supports including these communities in WNNE-TV's market. Weighing the totality of circumstances presented to us with respect to the communities located in Cheshire County, we believe a grant of WNNE-TV's request is warranted. 21. Accordingly, for the purposes of determining mandatory signal carriage obligations, we shall consider the communities in Sullivan County and Cheshire County, New Hampshire and Windham County, Vermont, listed respectively in notes one, two, and three, supra, to be part of the Burlington, Vermont-Plattsburgh, New York ADI with respect to WNNE-TV, as well as within the Boston, Massachusetts ADI. This determination is subject to all generally applicable limitations on signal carriage rights, including copyright liability, signal quality, channel capacity, and program duplication. See paragraph 7, supra. ORDERING CLAUSES 23. Accordingly, IT IS ORDERED, pursuant to 614 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 captioned petitions for special relief (CSR-4004-A, CSR-4001-A, and CSR- 4002-A) filed by WNNE-TV, Inc. ARE GRANTED. This change shall be effective in accordance with the following schedule: WNNE-TV, Inc. shall notify the cable systems in question in writing of its carriage and channel position election (76.56, 76.57, and 76.64(f) of the Commission's Rules) within 30 days of the release date of this Memorandum Opinion and Order. The affected cable systems shall come into compliance with the applicable rules within 60 days of the above notice. 24. 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