NOTICE ************************************************************************* NOTICE ************************************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file pnmc5021. File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* Before the Federal Communications Commission Washington, D.C. 20554 ) In re Petition of ) ) Bradenton Broadcast Television Co., Ltd. ) CSR-4815-A ) For Modification of Market of ) Station WFCT-TV ) MEMORANDUM OPINION AND ORDER Adopted: November 29, 1996 Released: December 5, 1996 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. Bradenton Broadcast Television Co., Ltd. ("Bradenton") filed the above-captioned petition, pursuant to Sections 76.7 and 76.59(a) of the Commission rules, requesting that the Commission modify the market of its television station WFCT-TV (Channel 66, Bradenton, Florida) ("WFCT-TV") to include Sarasota, Venice, and unincorporated areas of Sarasota County, Florida ("Sarasota Communities") served by area cable systems for purposes of determining must- carry rights. Comcast Cablevision of West Florida, Inc. ("Comcast") filed an opposition to the petition, and Bradenton filed a reply. BACKGROUND 2. Pursuant to Section 614 of the Communications Act of 1934, as amended by the Television Consumer Protection and Competition Act of 1992, 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. The Commission is also directed to consider changes in market areas. Section 614(h)(1)(C) further 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, Section 614(h)(1)(C)(ii) 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, 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 a market change request. 7. Adding communities to a station's market 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, and 3) 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 only one such duplucating signal, the operator is obliged to carry the station from the ADI whose city of license is closest to the principal headend of the cable system. Accordingly, depending upon the circumstances involved, the addition of communities to a station's market may have the following consequences. It may guarantee that station's carriage in the subject communities. Should there be more must-carry stations that one-third of the system's channel capacity, it would provide the system operator with an expanded list of must-carry signals from which to choose. Should the station be a duplicating network station, it will determine which station has priority carriage in the subject communities added. MARKET FACTS AND ARGUMENT 8. WFCT-TV, a television station licensed to Bradenton, Florida, is located in the Tampa/St. Petersburg/Clearwater/Lakeland, Florida ADI, as defined in Arbitron's 1991-1992 Television ADI Market Guide. Bradenton requests in its petition that the Commission modify the market of its television station WFCT-TV to include the Sarasota Communities served by area cable systems, for purposes of determining must-carry rights. Bradenton asserted that, although the Sarasota Communities are located in the Sarasota, Florida ADI, they are a vital part of WFCT-TV's market area and for that reason WFCT-TV should be entitled to mandatory carriage under the Commission's must-carry rules on cable systems in those communities. 9. Bradenton described facts and circumstances, which allegedly show that the Sarasota Communities should be included within its market, when considered under the four factors test set forth in Section 614(h)(1)(C)(ii) of the Communications Act. First, Bradenton stated that, although WFCT-TV began broadcasting in the Tampa Bay area on August 1, 1994, all of the major cable systems in the nine county geographic area are carrying the station, except for Comcast Cable, which serves the Sarasota Communities. Secondly, Bradenton provided a station signal contour map, which shows that WFCT-TV, from its tower in Manatee County, provides a Grade A signal over most, and a Grade B signal over all, of Sarasota County where the Sarasota Communities are located. Bradenton further pointed out that Sarasota is located just over ten miles from Bradenton, Florida, WFCT-TV's city of license, that Venice, Florida is about thirty miles from Bradenton, and that the other Sarasota Communities are also within close proximity to WFCT-TV. Thirdly, Bradenton admitted that WFCT-TV provides no formal news coverage for its broadcast area. However, it asserted that two locally produced programs aired on WFCT-TV serve the interests of the Sarasota Communities. While those two programs focus principally on nearby counties other than Sarasota County, Bradenton asserted that those programs include segments which present viewpoints of residents and community leaders from Sarasota County. Fourth, Bradenton admits to having low audience viewership in the relevant communities. Stating that WFCT-TV broadcasts "primarily infomercials, religious and public interest programming to its service area," Bradenton argues that the Commission recognizes that specialty stations, such as WFCT-TV, offer a desirable diversity of programming while typically attracting limited audiences. It argued that in Paragon Cable, 10 FCC Rcd 9462 (Cable Serv. Bur. 1995), the Commission indicated that, in determining the equities concerning a station's right to cable carriage, the fact that such specialty stations attract smaller audiences must be taken into account. 10. Comcast asserts in opposition that an analysis of relevant facts under the four factor statutory test shows that WFCT-TV's market should not be modified as requested by Bradenton. Comcast states that WFCT-TV fails factor one, because the station has never been carried on its system serving the Sarasota Communities. Comcast contended that WFCT-TV fails factor two, because the station provides no local news coverage. Comcast contends further that the modest amount of programming, represented by the two locally produced programs on which Bradenton claims credit for coverage of local community interest matters, belies Bradenton's claim of serving the Sarasota Communities. Comcast asserts that programming of other stations carried on its system provide ample local community interest coverage, thus depriving WFCT-TV of credit for this third factor. Lastly, Comcast argues that, absent any demonstration of viewing of WFCT-TV in the Sarasota Communities, the fourth prong of the market modification test must be also weighed against grant of Bradenton's petition. In this regard, Comcast noted that television viewing guides for the Sarasota Communities do not provide listings for WFCT-TV. 11. Bradenton asserts in reply that Comcast's past refusal to carry WFCT-TV on its cable system must be considered inconsequential under the four factor test, as interpreted by the Commission is similar circumstances. Bradenton argues that Commission precedent holds that WFCT-TV's provision of a Grade A signal over the Sarasota Communities establishes the station's provision of service to those communities. It argues further that the Commission deems the provision of local news and programming by other stations entitled to carriage not relevant to the market modification decision to be made in this case. Bradenton asserts that the absence of available WFCT-TV viewing data is attributable to not subscribing to Nielsen in Sarasota County, a business decision that should not be held against it. Bradenton also reiterates the argument that the Commission gives recognition to the public interest value of specialty stations such as WFCT-TV. ANALYSIS AND DECISION 12. Bradenton has provided sufficient evidence to justify its market modification request and, accordingly, it will be granted. Considering the information provided for the record in light of the factors specified in Section 614(h)(1)(C)(ii) of the Communications Act, we are persuaded that WFCT-TV's television market should include the Sarasota Communities. The subject communities lie in close proximity to station WFCT-TV. Additionally WFCT-TV's signal is carried on numerous cable systems in the surrounding nine counties. Further, the fact that WFCT-TV places a Grade A signal over most of, and a Grade B signal over all of, Sarasota County where the Sarasota Communities are located is persuasive evidence that the station provides service to these communities. In this connection, we note that WFCT-TV's programming, which consists of infomercials, religious and public interest programming, is not incompatible with local appeal. We also recognize that, while such specialty programming traditionally has drawn smaller audiences, it serves the public interest. Finally, carriage by Comcast of other local stations does not act as a bar to including the Sarasota Communities in WFCT-TV's market, as Comcast suggests. This third staturory factor was intended to enhance a station's claim where it could be shown that other stations do not serve the communities at issue. ORDER 13. Accordingly, IT IS ORDERED, pursuant to Section 614(c) of the Communications Act of 1934, as amended, 47 U.S.C.  534, and Section 76.59 of the Commission's Rules, 47 C.F.R.  76.59, that the "Petition for Special Relief" (CSR-4815-A) filed by Bradenton Broadcast Television Co., Ltd. IS GRANTED. Comcast Cablevision of West Florida, Inc. is therefore required to carry the signal of WFCT-TV on its systems serving the Sarasota Communities. Bradenton Broadcast Television Co., Ltd. shall notify Comcast Cablevision of West Florida, Inc. in writing of its carriage and channel position elections, pursuant to 47 C.F.R. 76.56, 76.57, 76.64(f), within thirty (30) days of the release date of this Memorandum Opinion and Order. Comcast Cablevision of West Florida, Inc. shall come into compliance with the applicable rules within 60 days of such notification. 14. This Action is taken pursuant to authority delegated by Section 0.321 of the Commission's rules, 47 C.F.R.  0.321. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau