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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) CHARTER COMMUNICATIONSCSR-4796-A ) ENTERTAINMENT I, L.P. ) ) CENCOM CABLE INCOME CSR-4797-A ) PARTNERS, L.P. ) ) For Modification of the ADI of ) Station WCEE-TV ) MEMORANDUM OPINION AND ORDER Adopted: November 20, 1996 Released: November 25, 1996 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Charter Communications Entertainment I, L.P. ["Charter I"] and Cencom Cable Income Partners, L.P. ["Cencom"], each operators of cable television systems serving communities in and around St. Louis, Missouri, have filed the captioned petitions which seek to exclude the communities served by petitioners from the St. Louis, Missouri "area of dominant influence" of Station WCEE-TV (Ind., Channel 13), Mt. Vernon, Illinois. The petitions are opposed by Channel 13 of St. Louis, Inc. ["WCEE-TV"], licensee of the station, and petitioners have replied. BACKGROUND 2. Pursuant to 614 of the Communications Act and implementing rules adopted by the Commission in its Report and Order in MM Docket No. 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)(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. As for deletions of communities from a station's ADI, the legislative history of this provision indicates that: The provisions of [this subsection] reflect a recognition that the Commission may conclude that a community within a station's ADI may be so far removed from the station that it cannot be deemed part of the station's market. It is not the Committee's intention that these provisions be used by cable systems to manipulate their carriage obligations to avoid compliance with the objectives of this section. Further, this section is not intended to permit a cable system to discriminate among several stations licensed to the same community. Unless a cable system can point to particularized evidence that its community is not part of one station's market, it should not be permitted to single out individual stations serving the same area and request that the cable system's community be deleted from the station's television market. 7. 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. MARKET FACTS AND ARGUMENTS OF THE PARTIES 8. The communities in question are, in addition to some portions of the city of St. Louis, Missouri, suburbs of St. Louis in St. Louis County, Missouri, and Madison, St. Clair, Monroe, and Bond Counties, Illinois. They are centrally located in the St. Louis ADI. Mt. Vernon, Illinois, WCEE-TV's city of license, is located at the eastern edge of the St. Louis ADI, approximately 75 miles from St. Louis. The nearest communities are located approximately 50 miles from Mt. Vernon, while the furthest communities are approximately 90 miles from Mt. Vernon. The Mississippi River bisects the ADI. 9. Petitioners each state that they have never carried WCEE-TV, although the station has been in operation since 1983. In addition, Cencom states that it is not aware of any carriage of WCEE-TV by other cable operators serving communities immediately surrounding Cencom's Illinois systems. Charter I states that all of the communities served by its systems lie beyond the Grade B contour of WCEE-TV, and are on average 75 miles from Mt. Vernon, WCEE-TV's city of license. Cencom states that the communities served by its systems lie either beyond or at the western edge of WCEE-TV's Grade B contour, and its nearest headend communities are on average approximately 60 miles from Mt. Vernon. Petitioners argue that such distances have previously been found to justify deletion of communities from certain stations' markets. Charter I and Cencom contend, too, that WCEE-TV provides no local programming or local service to the communities in question. Petitioners note that an examination of the St. Louis edition of TV Guide for the week June 15-21, 1996 "reveals that approximately 37% of WCEE's broadcast consists of `paid programming' or `infomercials.' Another 36% of WCEE's broadcast consists of Gospel Music." Charter I and Cencom state that they could not identify any local coverage of their communities in the remainder of the station's programming. Petitioners contend that other local stations do provide actual service to and coverage of the communities in question. Petitioners note that Nielsen's most recent market designation assigns WCEE-TV to the Paducah, Kentucky--Cape Girardeau, Missouri--Harrisburg, Illinois--Marion, Illinois Designated Market Area (DMA), and that the Paducah edition of TV Guide lists WCEE-TV as an offered channel. Finally, petitioners cite letters from the Cable Advertising Network of Greater St. Louis -- which compiles Nielsen daypart viewing data for the St. Louis DMA -- to demonstrate that WCEE-TV achieves virtually no measured off-air viewing in the St. Louis DMA. 10. In opposition, WCEE-TV contends that Charter I's and Cencom's petitions have been filed as part of a pattern of attempts to avoid carriage of WCEE-TV since the station elected mandatory carriage on the systems. WCEE-TV argues that it airs programming of local interest by means of a pioneering format that "combin[es] program-length presentations by local and national businesses and community organizations with religious and local public affairs programming." WCEE-TV states that its program-length presentations air during daytime hours, its religious programming airs through the night, and that it airs syndicated programming (such as "Star Trek," "Top Cops," and "M*A*S*H") during prime-time hours. WCEE-TV further states that it presents a half hour of children's programming 6:30 to 7:00 am Monday through Friday, and also three hours of local and regional religious programming and an hour of locally- originated public affairs programming on Sundays. WCEE-TV contends that it provides a valuable and effective advertising platform for local businesses and organizations, and expects that within two years up to 45% of the station's air time will be devoted to such presentations. WCEE-TV notes that it provides a signal of sufficient strength through Low Power Television Station K07TV, St. Louis, Missouri, which WCEE-TV has acquired to retransmit its programming, and contends that petitioners have failed to rebut the statutory presumption favoring mandatory carriage of WCEE-TV throughout the St. Louis ADI. WCEE-TV argues that 614(h)(1)(C)(i) of the Act authorizes the Commission to modify ADI markets "to better effectuate the purposes of this section," which WCEE-TV states are to ensure cable carriage of local stations so that they may originate local programming, and to counteract cable operators' economic incentive to delete stations which compete for advertising revenue with the operators. WCEE-TV notes that the Commission is instructed, in considering market modification requests, to "afford particular attention to the value of localism . . . ," and argues that, in the present case, this attention weighs in favor of the station's continued carriage, particularly given the smaller and specialty nature of WCEE-TV. 11. Turning to the four statutory factors, WCEE-TV argues that its lack of historic carriage should not be given great weight in a situation where, as here, petitioners seek to delete communities from WCEE-TV's ADI. With regard to the station's local service, WCEE-TV notes that it provides service beyond its Grade B contour through Low Power Television Station K07TV, and argues that this compensates for the station's lack of a Grade B contour, citing Greater Worcester Cablevision. WCEE-TV notes as well that its Grade B contour substantially overlaps those of stations licensed to St. Louis, demonstrating that they are part of the same local market, citing World Company d/b/a Columbine CableVision. WCEE-TV states in addition that a substantial majority of Cencom's subscribers are in communities encompassed by the station's Grade B contour. Though petitioners place great weight on the distances between WCEE-TV's city of license and the communities in question, WCEE-TV contends that Congress rejected a mileage-based determination of station markets, and opted instead for defining markets be reference to stations' ADIs. WCEE-TV describes itself as a " `billboard' for local advertisers," which benefits local residents by providing them with valuable information on community businesses and resources, and notes that the St. Louis edition of TV Guide lists WCEE-TV as a local station. WCEE-TV argues that the merits of its programming format are not germane to this discussion. WCEE-TV contends that the fact that other St. Louis ADI stations are carried by petitioners is not relevant to their request to modify WCEE-TV's ADI by deleting communities, nor have petitioners demonstrated that the other stations in fact provide significant local programming. Finally, WCEE-TV contends that its modest audience share must be considered in the light of its nature as a struggling independent station with a specialty format, and notes that petitioners carry two other stations -- Television Broadcast Stations KNLC (Ind., Channel 24), St. Louis, Missouri, and WHSL (Ind. Channel 46), East St. Louis, Illinois [this latter a home shopping station] -- whose audience shares are not significantly greater than those of WCEE-TV. 12. In reply, Charter I and Cencom argue that WCEE-TV has offered no evidence to refute petitioners' showing that the communities in question should be deleted from WCEE-TV's ADI. Petitioners contend that modification of WCEE-TV's market as they request is fully consistent with Congressional intent, which recognizes that "a community within a station's ADI may be so far removed from the station that it cannot be deemed a part of the station's market." Petitioners claim that they have demonstrated that each of the four statutory factors favor modification of WCEE-TV's market as requested, and that WCEE-TV has failed to rebut this demonstration. Petitioners note that though WCEE-TV has never been carried on their systems, the station simply argues that this should be neither controlling nor given great weight. Petitioners argue that WCEE-TV has demonstrated no particular nexus between its present or contemplated programming and the communities in question. Although Cencom acknowledges that some of its communities may be encompassed by WCEE-TV's Grade B contour, Cencom notes that this is not controlling in a situation in which the station's programming is not tailored to the needs of the communities in question, citing Time Warner Entertainment- Advance/Newhouse Partnership, supra. Cencom states that the fact that no specific mileage standard is applied by the Commission does not preclude distance as a consideration, as the Commission has previously found. In addition, Charter I contends, citing Dynamic Cablevision of Florida, Ltd., et al., that WCEE-TV's boosting of its signal via a translator station does not entitle WCEE-TV to carriage on Charter I's systems. Petitioners claim that WCEE-TV's attempt to discount the carriage of other St. Louis ADI stations on petitioners' systems does not, in the context of WCEE-TV's failure to meet any of the statutory criteria, weigh against market modification. Petitioners further assert that WCEE-TV should not be entitled to special status by virtue of its programming format of primarily infomercials coupled with some religious and syndicated programming. Petitioners contend that WCEE-TV's allegations of bad faith against petitioners are inappropriate, and that, given the totality of the circumstances, the petitions should be granted. ANALYSIS AND DECISION 13. We will grant Charter I's and Cencom's requests. We believe that, based upon the four statutory and other relevant factors, petitioners have demonstrated that their systems' communities are sufficiently removed from WCEE-TV that they ought not be deemed part of the station's market for mandatory carriage purposes. 14. As an initial matter, we note that, according to the legislative history of the 1992 Cable Act, the use of ADI market areas is intended "to ensure that television stations be carried in the areas which they service and which form their economic market. Changes may be sought and granted by the Commission "to better effectuate the purposes" of the mandatory carriage requirements. The market change process incorporated into the Communications Act, however, is not intended to be a process whereby cable operators may seek relief from the mandatory signal carriage obligations apart from the question of whether a change in the market area involved is warranted. When viewed against this backdrop, and considering all of the relevant factual circumstances in the record, we believe that the operators' deletion petitions appear to be a legitimate request to redraw ADI boundaries to make them congruous with market realities. Charter I's and Cencom's actions do not appear to reflect an intention to skirt their signal carriage responsibilities under the 1992 Cable Act and the Commission's Rules, nor do petitioner's actions evidence a pattern of discriminatory conduct against the station. 15. Turning to the four-part market modification test set forth in 614, we note at the outset that WCEE-TV has no history of carriage in the communities in question, despite having been on the air since 1983. Turning to the second factor, that of local service, we note that the communities served by Charter I lie beyond WCEE-TV's Grade B contour, while the communities served by Cencom lie beyond or at the western edge of the station's Grade B contour. Although we have stated that local service could be demonstrated if a station places a Grade B contour over the cable community, we do not believe that this factor should be given conclusive weight in the present circumstances, as WCEE-TV has presented no particular evidence of programming specifically tailored to the communities in question, even those encompassed by its Grade B contour. Although WCEE-TV expresses its hope that somewhat less than half of its air time will be comprised of program-length presentations from national and local businesses and community organizations within two years, the station provides no specific examples of any such presentations tailored to the communities in question today, or any other programming so tailored. In addition, the communities in question lie at significant distances from Mt. Vernon, Illinois -- WCEE-TV's city of license -- and the Mississippi River lies between the communities served by Charter I and Mt. Vernon. This is unlike the cases cited to us by WCEE-TV, which involved communities situated within the Grade B, Grade A, or even City Grade contours of the stations in question, and in most cases within 35 or fewer miles of the stations. While we recognize that the translators which retransmit WCEE-TV's signal may encompass some of the cable communities in question, translators do not have carriage rights under 614 and, given all the circumstances in the present case, do not demonstrate that the cable communities are within WCEE-TV's natural market. 16. The availability of other broadcasters in the market is the third factor to consider in market deletion cases such as this one. Where a cable operator is seeking to delete a station's mandatory carriage rights in certain communities within its ADI, and it is clear that the station is not providing local service to those communities, the issue of local coverage by other stations becomes a factor which we will give greater weight than in cases where a party is seeking to add communities. In the present cases, Charter I's and Cencom's systems carry numerous network affiliated and independent stations licensed to the St. Louis ADI which provide coverage of local news and events, as well as carrying local origination and local access channels. 17. With respect to the fourth factor, that of viewing patterns in the communities, we note that WCEE-TV has virtually no over-the-air audience in the communities in question. No viewership is reported for WCEE-TV in St. Louis and St. Louis County, Missouri, in which all communities served by Charter I are located, nor in Madison and St. Clair Counties, Illinois, in which virtually all of the communities served by Cencom are located. The only counties for which Nielsen reports any audience for WCEE-TV are Monroe County and Bond County, both in Illinois. In Monroe County, WCEE-TV is reported to have a share of less than 0.5 and a cume of 15. In Bond County, WCEE-TV's reported share is 3 and its total cume is 31. We further note, however, that Cencom serves only the community of Sorento in Bond County, and only the communities of Columbia and Waterloo in Monroe County. In addition, Sorento is located in extreme northwestern Bond County, and Columbia and Waterloo are located in northern Monroe County, in each case portions of the county that are furthest from Mt. Vernon, WCEE-TV's city of license. WCEE-TV's local audience in the communities is thus likely even less than is reported at the county-wide level. 18. Finally, we note that Nielsen currently assigns WCEE-TV to the Paducah, Kentucky--Cape Girardeau, Missouri--Harrisburg, Illinois--Marion, Illinois DMA. We recognize that the 1991-92 Arbitron ADI designations remain the basis for 1996 carriage elections. Nevertheless, the Commission has invited parties to include information as to DMA assignments in market modification proceedings because it may provide additional information as to the scope of the markets involved. We believe, in view of the totality of the circumstances of the present cases, that Nielsen's DMA market assignation of WCEE-TV, while it cannot by itself be determinative, is persuasive evidence that the communities in question do not have a sufficient nexus with the station to be considered to be part of its market. While we recognize that WCEE- TV has a translator with a protected contour covering some of the cable communities and that the station has demonstrated some limited viewership in certain of the communities, we do not believe that these factors, by themselves, are sufficient to override the considerable geographic distance to the cable communities, the lack of even a Grade B contour over most of the communities, the lack of historical carriage, the dearth of audience in the communities served by Charter I and Cencom, and the station's assignment to the Paducah, Kentucky--Cape Girardeau, Missouri--Harrisburg, Illinois--Marion, Illinois DMA. ORDER 19. 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-4676-A) filed July 24, 1996 by Charter Communications Entertainment I, L.P. IS GRANTED. 20. IT IS FURTHER 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-4676-A) filed July 24, 1996 by Cencom Cable Income Partners, L.P. IS GRANTED. 21. 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